Legal battles

DoD Law of War ManualFollowing up my comments on the Pentagon’s new Law of War Manual, issued last month: commentaries are starting to appear (it’s not surprising these are taking so long: the new version runs to 1200 pages).

Just Security is hosting a forum on the Manual, organised by Eric Jensen and Sean Watts.  They are both deeply embedded in the debate: Eric is a Professor at Brigham Young Law School and was formerly Chief of the Army’s International Law Branch and Legal Advisor to US military forces in Iraq and Bosnia, while Sean is a Professor at Creighton University Law School and on the Department of Law faculty at the United States Military Academy at West Point; he is also Senior Fellow at the NATO Cooperative Cyber Defence Centre of Excellence and served in the US Army’s Judge Advocate General’s Corps.

In the opening salvo, Sean focuses on the Manual‘s identification of three core principles:

“Three interdependent principles – military necessity, humanity, and honor – provide the foundation for other law of war principles, such as proportionality and distinction, and most of the treaty and customary rules of the law of war.”

The implications of this formulation are more far reaching than you might think.  Necessity, proportionality and distinction have long been watchwords, but the inclusion – more accurately, Sean suggests, the resurrection – of ‘humanity’ and ‘honor’ is more arresting: in his view, the first extends the protection from ‘unnecessary suffering’ while the second ‘marks an important, if abstract revival of good faith as a legal restraint on military operations’.

Watch that space for more commentaries, inside and outside the armed camp.

Others have already taken a much more critical view of the Manual.

Claire Bernish draws attention to two particularly disturbing elements here.  First, like several other commentators, she notes passages that allow journalists to be construed as legitimate targets.  While the Manual explains that ‘journalists are civilians’ it also insists there are cases in which journalists may be ‘members of the armed forces […] or unprivileged belligerents.’   Apparently, Claire argues,

‘reporters have joined the ranks of al-Qaeda in this new “unprivileged belligerent” designation, which replaces the Bush-era term, “unlawful combatants.” What future repercussions this categorization could bring are left to the imagination, even though the cited reasoning—the possibility terrorists might impersonate journalists—seems legitimate. This confounding label led a civilian lawyer to say it was “an odd and provocative thing for them to write.”‘

Other commentators, mindful of incidents in which the US military has been accused of targeting independent (non-embedded) journalists, have read this as far more than provocation.  Like other claims registered in the Manual, this has implications for other armed forces – and in this particular case, for example, Ken Hanly points out that ‘what is allowed for NATO and the US is surely legitimate for Israel.’

This is not as straightforward as he implies, though.  Eric Jensen agrees that

‘[T]he writers had to be aware this manual would also be looked to far beyond the US military, including by other nations who are formulating their own law of war (LOW) policies, allies who are considering US policy for purposes of interoperability during combined military operations, transnational and international organizations such as the International Committee of the Red Cross (ICRC) who look to such manuals when considering the development of customary practice, and even national and international tribunals who adjudicate LOW questions with respect to the criminality of individual actions.

While Eric acknowledges ‘the inevitable use of [the Manual] in the determination of customary practice.’ however, he also argues that the authors of the Manual go out of their way to preclude this possibility: they ‘wanted to be very clear that they did not anticipate they were writing into law the US position on the law of war.’

Second, Claire draws attention to a list of weapons with specific rules on use’ (Section 6.5.1), which includes cluster munitions, herbicides and explosive ordnance, and a following list of other ‘lawful weapons’ (Section 6.5.2) for which ‘there are no law of war rules specifically prohibiting or restricting the following types of weapons by the U.S. armed forces’; the list includes drones and Depleted Uranium munitions.  These designations are all perfectly accurate, but Claire’s commentary fastens on the fact that at least two of these weapons have been outlawed by many states.  She draws attention to the hideous consequences of DU and cluster bombs, and explains that cluster bombs:

‘are delineated in the manual as having “Specific Rules on Use”— notably, such weapons’ use “may reflect U.S. obligations under international law” [emphasis added]. While this is technically apt, cluster bombs have been banned by the 2008 Convention on Cluster Munitions—which was agreed to by 116 countries around the world. The U.S. stands out in joining infamous human rights violator, Saudi Arabia, in its refusal to sign. These insidious munitions leave unexploded ordnance for months, or even decades, after the originating bomb was dropped. Children are often maimed or killed when they unwittingly mistake them for toys.’

Meanwhile, also at Just Security but seemingly not part of the Forum, Adil Ahmad Haque has attacked the Manual‘s discussion of ‘human shields’:

The Defense Department apparently thinks that it may lawfully kill an unlimited number of civilians forced to serve as involuntary human shields in order to achieve even a trivial military advantage. According to the DOD’s recently released Law of War Manual, harm to human shields, no matter how extensive, cannot render an attack unlawfully disproportionate. The Manual draws no distinction between civilians who voluntarily choose to serve as human shields and civilians who are involuntarily forced to serve as human shields. The Manual draws no distinction between civilians who actively shield combatants carrying out an attack and civilians who passively shield military objectives from attack. Finally, the Manual draws no distinction between civilians whose presence creates potential physical obstacles to military operations and civilians whose presence creates potential legal obstacles to military operations. According to the Manual, all of these count for nothing in determining proportionality under international law.

If true, this would dramatically qualify the discussion of ‘humanity’ and ‘honor’ above; but, not surprisingly, Charles Dunlap will have none of it.  He objects not only to Adil’s reading of the Manual, but also the logic that lies behind his criticism:

Killing those who do the vast majority of the killing of civilians can save lives. It really can be that simple.

Experience shows that well-meaning efforts to curb the use of force can have disastrous effects on civilians. Think about the restrictions on airstrikes imposed by Gen. Stanley McChrystal in Afghanistan in mid-2009. The result? By the time he was fired a year later in June 2010, civilian casualties had jumped a heart-rending 31% entirely because of increased killings by anti-government forces. (In addition, casualties among friendly troops hit an all-time high in 2010.)

McChrystal Tactical Directive 1

[The unclassified section of McChrystal’s Tactical Directive (above) is here]

When Gen. David Petraeus took command in mid-2010, he took a different, more aggressive approach. While still scrupulously adhering to the law of war, he clarified the rules of engagement in a way that produced a tripling of the number of airstrikes. The result? The increase in civilian casualties was cut in half to 15% by the end of 2010. Under Petraeus’ more permissive interpretation of the use of force against the Taliban and other anti-government forces, the increase the following year was cut almost in half again to 8% (and losses of friendly troops fell 20%). To reiterate, although counterintuitive to some critics, restricting force by law or policy can actually jeopardize the lives of the civilians everyone wants to protect.

Michael O’Hanlon at the Brookings Institue makes exactly the same argument about the Manual here (scroll down), but Dunlap’s sense is much sharper: the Manual, he says, ‘is designed to win wars in a lawful way that fully internalizes, as it says itself on several occasions, the “realties of war.”’  This is immensely important because in effect it acknowledges that neither the Manual nor the laws of war are above the fray.  If the Manual ‘is designed to win wars in a lawful way’ that is precisely because law is in the army’s baggage train, fully incorporated into the juridification of later modern war.  Law is at once a powerful weapon and a moving target.

Playing a blinder

A characteristically smart post from Larry Lewis at War on the Rocks about Obama’s promise to investigate the mistakes made in the CIA-directed drone strike that unwittingly killed two hostages in Pakistan in January 2015.  ‘We’ve been on that path before, in Afghanistan,’ he writes, ‘and we know where it leads: more promises followed by a repeat of similar mistakes.’

Larry explains that the US military was causing an ‘unacceptable number’ of civilian casualties in Afghanistan between 2006 and 2009:

JCCSWhen an incident occurred, they investigated the incident, made changes to guidance, and promised to keep such an incident from happening again. But these incidents kept happening. So the military repeated this ineffective review process again and again. This “repeat” cycle was only broken when military leaders approved the Joint Civilian Casualty Study, a classified outside review requested by General Petraeus. This effort had two key differences from earlier efforts. First, it was independent, so it was able to overcome false assumptions held by operating forces that contributed to their challenges. And second, the study looked at all potential civilian casualty incidents over a period of years, not just the latest incident. This approach helped identify systemic issues with current tactics and policies as the analysis examined the forest and not just the nearest tree. This study also considered different sets of forces operating within Afghanistan and their relative propensity for causing civilian casualties.

You can access the unclassified Executive Summary – co-written by Larry with Sarah Sewell – here.  I’ve noted Larry’s important work on civilian casualties before – here, here and here – but his short Op-Ed raises two issues that bear emphasis.

The first is that it is a mistake to abstract strikes carried out by a Predator or a Reaper from air strikes carried out from conventional platforms; the latter are often facilitated and even orchestrated by a UAV – as in the ‘signature’ case of the Uruzgan strike in 2010 – but, pace some drone activists, our central concern should surely be the wider matrix of military violence.  This also implies the need to articulate any critique of CIA-directed drone strikes in Pakistan with the use of air power in Afghanistan (and not only because USAF pilots fly the ‘covert’ missions across the border).  Here General Stanley McChrystal‘s Tactical Directive issued in July 2009 that directly addressed civilian casualties is a crucial divide.   As Chris Woods emphasizes in Sudden Justice,

‘Radically different tactics were now being pursued on either side of the “AfPak” border…. Even as Stanley McChrystal was cutting back on airstrikes in Afghanistan, the CIA was escalating its secret air war in Pakistan’s tribal areas.’

The second issue is the extraordinary partitions – blinkers might be more accurate – that seem to be imposed on military operations and investigations.  In the case of the Uruzgan attack, for example, a military lawyer was called in at the eleventh hour to monitor the video feeds from the Predator as it tracked a ‘convoy’ (a term surely as leading as ‘Military-Aged Male’) in the early morning.  As the next two slides show, taken from my ‘Angry Eyes’ presentation, the JAG knew the Rules of Engagement (ROE) and the Tactical Directive; he obviously also knew the legal requirements of proportionality,  distinction and the rest.

Angry Eyes:1

Angry Eyes:2

Knowing the ROE, the Tactical Directive and the formal obligations of international law is one thing (or several things): but what about ‘case law’, so to speak?  What about knowledge of other, similar incidents that could have informed and even accelerated the decision-making process?  In this case, before the alternative course of action could be put into effect and an ‘Aerial Vehicle Interdiction’ set in motion – using helicopters to halt the three vehicles and determine what they were up to – two attack helicopters struck the wholly innocent ‘convoy’ and killed 15-21 civilians.  Fast forward to the subsequent, I think forensic Army investigation.  This is the most detailed accounting of a ‘CIVCAS’ incident I have read (and you’ll be able to read my analysis of it shortly), and yet here too – even with senior military legal advisers and other ‘subject experts’ on the investigating team – there appears to be no reference to other, similar incidents that could have revealed more of the ‘systemic issues’ to which Larry so cogently refers.

This is made all the stranger because there is no doubt – to me, anyway – that the US military takes the issue of civilian casualties far more seriously than many of its critics allow.

CIVCAS