How the New York Times misconstrues the law on civilian casualties

It is understandably challenging for journalists to translate the sometimes complex legal concepts of international law for a general audience.  However, when it is the New York Times, and the reporters involved are highly-regarded, it’s a real disappointment when the story is very wide of the mark.

Recently, the New York Times published a real scoop: “Trump’s proposed revisions of the use of force policies put in place by the Obama administration.”  Bobby Chesney did a superb overall analysis here on Lawfare, but allow me to focus on the perplexing issue as to why two of the nation’s most elite national security reporters so bollixed use-of-force law.  Consider this passage from their article:

International law governing war or self-defense allows countries to knowingly kill some civilians as an incidental consequence of attacking a legitimate military target, so long as the bystander deaths are deemed necessary and proportionate. (Emphasis added.)

It appears the Times is trying to express the rule set out in Article 51(5)(b) of Additional Protocol I to the Geneva Conventions (and repeated in Article 57).  That provision prohibits:

(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. (Emphasis added.)

In other words the rule is not, as the Times would have it, that the law “allows countries to knowingly kill some civilians.”  “Some” is obviously not a synonym for “excessive,” and I would argue that in this context, it suggests it always must be a small number, an interpretation which would indicate that the law is much less realistic than it really is.

So what does “excessive” mean?  Writing in the summer, 2012 issue of the International Review of the Red Cross, Jason Wright concluded that “there is no overarching definition of ‘excessive’ because the variables in the proportionality standard are relative to each other.”  Wright argues for a standard that “would find any outcome excessive that is objectively ‘unreasonable’ based on a commander’s subjective assessment of the anticipated military advantage and the expected collateral damage.”

The fact is that determining what is “excessive” in a particular situation is complicated and, yes, subjective.  The DoD Law of War Manual handles this thorny issue about as good as it can be.  In ¶ 5.12.3 it explains that:

Determining whether the expected incidental harm is excessive does not necessarily lend itself to quantitative analysis because the comparison is often between unlike quantities and values. The evaluation of expected incidental harm in relation to expected military advantage intrinsically involves both professional military judgments as well as moral and ethical judgments evaluating the risks to human life (e.g., civilians at risk from the attack, friendly forces or civilians at risk if the attack is not taken).

On the one hand, striking an ammunition depot or a terrorist training camp would not be prohibited because a farmer is plowing a field in the area.  On the other hand, an extraordinary military advantage would be necessary to justify an operation posing risks of collateral death or injury to thousands of civilians.  In less clear-cut cases, the legal question of whether the expected incidental harm is excessive may be a “highly open-ended” inquiry, and the answer may be “subjective and imprecise.”  For this reason, States have chosen to apply a “clearly excessive” standard for determining whether a criminal violation has occurred.

The Manual then focuses on the crux of the issue:

In determining whether the expected incidental harm would be excessive, the totality of the circumstances must be considered. This holistic judgment should consider any relevant moral, legal, and military factors.

The Manual’s discussion in this regard is not an expression of some unique U.S. view.  In the Max Planck Encyclopedia of Public International Law, Professor Wolff Heintschel von Heinegg explained in October of 2015 that:

Professor Heintschel von Heinegg

International humanitarian law lacks a definition of the term ‘excessive’. There is, however, general agreement that ‘excessive’ is not synonymous with ‘extensive’ and that assessing excessiveness ‘is not a matter of counting civilian casualties and comparing them to the number of enemy combatants that have been put out of action’. It has been rightly held that ‘even extensive civilian casualties need not be excessive in light of the concrete and direct military advantage anticipated’. (Citations omitted and emphasis added).

One would not expect a detailed explanation of the law in a newspaper article, but indicating that “some” civilian casualties is the limit the law could allow is clearly wrong.  It would have been far better – and easier – to simply use the language of the law, that is “excessive.”  One has to wonder why they didn’t.

Furthermore, the Times rendition of the law also suggests that the proportionality evaluation is based on a specific attack.  That is the view of some states, but increasingly not the view of the major warfighting nations (“specially affected states”).  As the International Committee of the Red Cross (ICRC) acknowledges:

Several States have stated that the expression “military advantage” refers to the advantage anticipated from the military attack considered as a whole and not only from isolated or particular parts of that attack.  The relevant provision in the Statute of the International Criminal Court refers to the civilian injuries, loss of life or damage being excessive “in relation to the concrete and direct overall military advantage anticipated” (Emphasis added).

The U.S. is one of the “several states” the ICRC references.  The DoD Law of War Manual says (¶5.6.7.3):

“Military advantage” refers to the advantage anticipated from an attack when considered as a whole, and not only from its isolated or particular parts… Similarly, “military advantage” is not restricted to immediate tactical gains, but may be assessed in the full context of the war strategy.

In short, the Times got it quite wrong.  When the legal piece of a story is as botched as it was here, it’s time for the journalists and their editors to redouble their due diligence and get the law right.

Still, as we like to say on Lawfire, get the facts, check the law, and you decide!