Finding the truth in complex civilian-casualty investigations

May I invite you to take a look at a just-published post over on Just Security entitled “There Is Much More to a Civilian Casualty Investigation than Eyewitness Accounts”?  It’s a response to a post co-written by four activists who excoriate the Pentagon for not obtaining more eye-witness accounts during its civilian-casualty investigations.

I contend that while witness interviews are certainly valuable, research in recent years shows that allegedly “eyewitness” accounts carry their own risks and limitations.  Accordingly, I believe that human rights organizations ought to rethink the extent to which they rely (over rely?) on such testimony to – as they put it – form the “bedrock” of their investigations, particularly in contested war zone areas.

I don’t think it’s true that, as the activist suggest, the U.S. isn’t fulfilling its international legal obligations simply because it can’t always do on-the-ground interviews concerning incidents in enemy territory.  Actually, it seems that the U.S. military pulls out virtually all the stops to obtain relevant information in its inquiries.  For example, here’s what U.S. Central Command says in its most recent Monthly Civilian Casualty Report:

[Combined Joint Task Force – Operation Inherent Resolve] takes all reports of civilian casualties seriously and assesses all reports as thoroughly as possible.  Although we are unable to investigate all reports of possible civilian casualties using traditional investigative methods, such as interviewing witnesses and examining the site, the Coalition interviews pilots and other personnel involved in the targeting process, reviews strike and surveillance video if available, and analyzes information provided by government agencies, non-governmental organizations, partner forces, and traditional and social media.  In addition, the Coalition considers new information when it becomes available in order to ensure a thorough and continuous review process.

In other words, as a matter of practice, investigations are ‘all-source’ endeavors that include analyzing information from “non-governmental organizations” which would, presumably, ordinarily contain the eyewitness accounts that the activists hype.  Furthermore, I’m convinced that the military’s use of modern investigative techniques can produce fact-based science that is extraordinary helpful – even dispositive – in determining what actually occurred in a particular instance.

In any event, I encourage you to read both the activists’ post and my response and draw your own conclusions.

In the course of working on the essay with Just Security’s superb editor, Kate Brannen, she mentioned to me a LA Times piece from last April about a March 17th incident in Mosul said that a “two-member team assesses civilian airstrike casualties for the coalition.”  This raised a question of some relevance to the broader discussion:  are enough resources being dedicated to the civilian-casualty issue?

I don’t know if the Times was intentionally trying to suggest that the answer was “no,” but taking the article from last spring as a whole, it’s something of a testament to an axiom in the military and elsewhere, that is, that the first reports are always wrong.  As I’ll discuss below, regardless of whatever is the number of people who may have done the initial “assessment,” there are often a significant number of people involved in the actual investigation.

That certainly appears to be the case with respect to the very incident the Times was reporting about.  For example, CNN reported that the U.S. sent a forensics team to the site and, as a result, a formal investigation was initiated under Army Regulation 15-6 Procedures for Administrative Investigations and Boards of Officers.

Such an investigation may be led by single officer – in this case it was a brigadier general (Mathew C. Isler) with an undergraduate degree in physics and three masters degrees, including one in aeronautical science – but it is also empowered to call upon all kinds of experts to assist.  As you can see from the coalition’s Executive Summary of that investigation (found here), there were plenty of people with a wide-variety of skill sets who were involved in figuring out what happened.

Science mattered in this case.  The investigation essentially determined that, for technical reasons associated with the physics of the explosive power of the particular bomb involved (called a GBU 38), it could not have brought down the building (importantly, it was determined that it was the building’s collapse which caused most of the civilian casualties).  As CBS News reported at the end of May:

The probe found that the U.S. bomb triggered secondary explosions from devices clandestinely planted there by fighters from the Islamic State of Iraq and Syria (ISIS).  And the military says the secondary blasts caused the concrete building to collapse… When the strike was approved, coalition forces had no information that civilians had taken shelter inside the building, [Brig. Gen.] Isler [the investigating officer] said. (Emphasis added.)

Additionally, CBS reported Isler as saying that ISIS “put a lot of work into this set up” and that he “concluded ISIS intended the explosives to kill civilians once the sniper’s nest was bombed.”  An investigation (like the kind activists tout) that depends upon as their “bedrock” source the testimony of those one-the-ground who mostly saw only the aftermath, and which is without access to the Coalition’s Intelligence, Surveillance, and Reconnaissance (ISR) capabilities that Isler referenced in his summary, would be hard-pressed to discover the real cause.

To the best of my knowledge, the results of Isler’s investigation have not really been disputed.

Still, I don’t know quite why the LA Times was reporting “a two-person team” except to say that maybe that is a reference to the duty officers who might do the initial review in practice called “battle damage assessment” or BDA that typically occurs after every strike.

BDA is a formalized and complex process, as the U.S. military doctrine document found here illustrates. To be clear, the BDA process exists primarily for military purposes (e.g., to determine of a particular military objective has been neutralized or would need to be re-attacked), but it could certainly trigger an AR 15-6 or other investigation if, especially, unexpected civilian casualties are reported.

Anyway, consider this discussion of the March 17th incident as kind of footnote on my new post.  It is a recent, real-world illustration that, contrary to activists’ post, the military does, in fact, conduct on-the-ground investigations (complete with multiple witness interviews) when it can (which is not always possible, particularly when the incident occurs in enemy-controlled territory).

It also underlines how the military utilizes forensic science and other modern investigative technologies to find the facts.  In reality, even the best-intended human rights organizations simply don’t have the resources to use today’s scientific methodologies at anywhere near the extent that the military can.  This capability-gap ought to temper the inclination I see too often for human rights organizations to make accusations against those deserving of the proverbial presumption of innocence when all the facts have yet to be gathered.

Moreover, for all the talk by human rights organizations about witness-interviews being the “bedrock” of their approach, they rarely gather interviews from those conducting the operation (even though, from the perspective of the law of war, the reasonableness of their actions based on what they knew prior to the strike is critical in determining ‘war crime’ culpability).

It is, of course, quite true that for security and other reasons human-rights organization investigators, through no fault of their own, may not have ready-access to those who conducted the operation, but that doesn’t diminish the relevance of such testimony.  As a result, any findings (or, especially, accusations) of an investigation without such highly-relevant evidence ought to be caveated and tempered accordingly.

The solution?  Perhaps a more deliberative and significantly more collaborative approach that leverages the respective strengths of both human rights organizations and the military could be productive?

But as we say on Lawfire, gather the facts, examine the arguments, and decide for yourself!




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