DoD’s interpretation of the Law of War isn’t “Garbage in/Garbage out”

Mr. Paul Ney

In his post critiquing Department of Defense (DoD) General Counsel Paul Ney’s address to the Israeli Defense Force conference, Rutgers Law professor Adil Ahmad Haque uses the phrase “garbage in, garbage out” to characterize DoD’s view of the law of war.

Accordingly, Haque contends that the U.S., to include presumably the men and women of the America’s military, have – in his words – a “systemic problem” with complying with the law of war.

I have many disagreements with Haque’s post, but allow me to highlight a few.

Haque objects to Ney drawing a distinction between lawful and unlawful combatants in non-international armed conflicts (NIACs).  He thinks that legally speaking, there are no “combatants” in NIACs.  This leads him to claim that “members of the U.S. military and the Coalition to defeat ISIL are not lawful combatants.”  He adds that such “misplaced labels tell us little, if anything, about what inferences we might reasonably draw from the results of military action.”

Does he have the law right?  Consider that the ICRC’s Customary IHL Database which declares in Rule 3 that “All members of the armed forces of a party to the conflict are combatants, except medical and religious personnel.”  With respect to NIACs, it says in part:

While State armed forces may be considered combatants for purposes of the principle of distinction…practice is not clear as to the situation of members of armed opposition groups. Practice does indicate, however, that persons do not enjoy the protection against attack accorded to civilians when they take a direct part in hostilities….Persons taking a direct part in hostilities in non-international armed conflicts are sometimes labelled “combatants”. (Emphasis added).

Clearly, there is plenty of authority to use the term “combatant” in in the context of a NIAC, and it’s perfectly acceptable to add the term “unlawful” to distinguish those operating with lawful authority from those that do not.  Regarding unlawfulness, even the ICRC concedes that “Members of organized armed groups do not have the same privileged status as combatants of State armed forces and, therefore, can be subject to domestic prosecution even for simply taking up arms.” (Emphasis added.)

Furthermore, with respect to ISIS, the unlawfulness of their combatency is not some invention of Paul Ney or DoD: the UN Security Council “unequivocally” condemned ISIS in 2015.

Haque also assails Ney’s concern about an “effort by the ICRC and a few States to ban or restrict the use of explosive weapons in populated areas”, or “EWIPA.””  Haque says:

Prof Haque

“That’s an oversimplification, if not a caricature. In fact, the ICRC’s view is that “explosive weapons with a wide impact area should not be used in densely populated areas due to the significant likelihood of indiscriminate effects.” The qualifications (wide impact, dense population) are important, and it’s not clear why Ney omits them.” (Emphasis added.)

I suggest Professor Haque take a look at the ICRC pamphlet that he linked in his essay, “ICRC Q&A on the issue of explosive weapons in populated areas.” – the very title of which quite plainly makes no mention of “wide effects” or the “dense” population “qualifications” that he says are so “important.”  “Wide impact” does appear in the pamphlet, but it’s jumbled amidst statements like this:

The International Committee of the Red Cross (ICRC) continues to witness these effects first-hand as it assists the victims of armed conflicts involving the use of explosive weapons in populated areas. The ICRC has raised its concerns with the parties to such armed conflicts as part of its bilateral and confidential dialogue on the conduct of hostilities. Since 2009, it has also been publicly expressing its concerns regarding the use of explosive weapons in populated areas. (Emphasis added.)

Obviously, there is no mention of “wide effects” or “densely” populated areas.  Likewise it has yet another paragraph that also makes no mention of “wide effects” or “densely” populated areas:

In parallel, the United Nations (UN) Secretary-General has been drawing the attention of UN member States to the need to strengthen the protection of civilians in view of the humanitarian impact of the use of explosive weapons in populated areas, as have UN agencies and non-governmental organizations.  (Emphasis added.)

M224 mortar

An important aspect of this discussion is how the ICRC defines “wide impact.”  If Haque or anyone else thinks that the ICRC was only talking about munitions that have a large blast zone, that would be mistaken because the definition of the “explosive weapons with a wide impact area” it uses in the “Q & A” pamphlet includes such standard light infantry weapons as mortars.

Why?  Apparently, the ICRC’s understanding of today’s military technology is such that if the “target is not observed by the platform firing the weapon” then, ipso facto, there is, in the ICRC’s words, a “lack of accuracy.”  The fact of the matter is that weapons today (and even more so tomorrow) can be cued with great accuracy by a wide variety of sensor systems (e.g., drones) that reside wholly apart from the “platform firing the weapon.”

For example, Tom Rogan’s recent op-ed (“Amnesty’s insane attack on the US military campaign against ISIS”), explains how another weapon the ICRC condemns – artillery – is actually employed on urban situations:

[A]rtillery is directed onto a target by military forward observers and then adjusted as necessary. Is this sometimes inaccurate? Yes, that’s war. Is it indiscriminate? By definition, no, it isn’t.

Additionally, if Haque’s “dense population” qualification really is “important,” then he’s out-of-step with the ICRC.  The ICRC – rather curiously – says that “’densely populated areas’ and ‘populated areas’ should be understood as synonymous with ‘concentration of civilians’.”  Thus, it seems that in the ICRC’s view, areas that are merely “populated” and areas that are “densely populated” are somehow synonymous.  Again, Haque is simply wrong if he thinks the ICRC is limiting their sought-after restriction “to densely populated” areas.  (The UN also does not use the qualifier “densely” in its position.)

Do you think the ICRC has the institutional competence, especially when compared to the vast expertise and experience of the U.S. military, to assess that wisdom of the use or non-use of a lawful weapon in a tactical situation? There are plenty of weapons the ICRC wants banned from urban conflict that can be used in particular situations in full compliance with the law of war.  As I’ve said before, the better way to protect civilians is not weapons’ bans, but rather strict adherence to the core principles of the law of war.

Additionally, Haque complains that DoD “claims that members of armed groups are liable to attack and collateral harm even if they never take direct part in hostilities.”  Actually, the law is that persons who are part of an organized armed group engaged in continuous combat operations can be targeted based on their status as member of such a group.

ISIS is one such group, and attacking its members who perform the same sort of duties (to include, for example, vital support activities) as members of traditional militaries of nation-states perform, can be lawful irrespective of whether or not they are wielding a weapon in a firefight at the moment of engagement. (Moreover, it should be remembered that the cruel truth is that ISIS will use women and children as fighters).

State practice overwhelmingly supports the construction of the law of war the U.S. employs, as evidenced by the U.S.’s leadership of the 80-member Global Coalition to Defeat Daesh.

In addition, I would further suggest that the complex battlespaces of modern conflicts have driven an ongoing evolution of the law in this respect.  For example, top experts now agree that non-state actors in a NIAC assembling improvised explosive devices (IEDs) – which are frequently used as a terror weapon against civilians – are targetable, as munitions workers in traditional weapons’ factories are not.  As the Nuremberg Tribunal observes, the “law is not static but by continued adaptation follows the needs of a changing world.

In any event, if anyone insists on relying upon non-U.S. sources and their interpretation of “civilian,” consider the statistics compiled by the NGO, the Bureau of Investigative Journalism (hardly an American mouthpiece).  By their count (as of 19 June 2019) the maximum number of U.S. drone (and other air) strikes and casualties for the period 2017-2019 are as follows:

       Max Strikes             Max Persons Killed            Max Civilians Killed

Afghanistan             6,214                      3,498                                431

Somalia                      121                         882                                  29

Yemen                        170                         227                                  25

Pakistan                         6                           23                                    3

Given that these strikes were typically conducted against an enemy who not only doesn’t wear a uniform, but who deliberately burrows himself into civilian communities and who employs humans shields (the latter phenomena being one that has tragically become “endemic in contemporary conflict”), it’s a phenomenal record of the precision application of force.  Of course, any civilian deaths are regrettable, but the numbers BIJ reports in no way suggest a “systemic problem with U.S. compliance with the law of war,” particularly with respect to the civilian casualty issue Haque focuses upon.

Haque also advances this argument:

For armed groups like ISIS, the political, strategic, and tactical benefits of controlling and operating in urban areas will outweigh the costs whether or not U.S. forces use wide-impact explosive weapons there. The notion that, if we use such weapons in cities, then ISIS will suddenly meet us in the open desert, in regular troop formations, is implausible in theory and belied by experience.

In this first place, neither Ney nor any person with military expertise is suggesting that “ISIS will suddenly meet us in the open desert, in regular troop formations” – that phantasm exists only in Haque’s imagination.  Indeed, it was the Coalition’s efforts – which included the use of the very munitions to which Haque objects – that forced ISIS to conclude that the “costs” of “controlling and operating in urban areas” vastly outweighed whatever “tactical benefits” they might have been deriving.

For example, CNN reported in March that thousands of ISIS fighters “surrendered amid a pitched battle” for Baghouz which involved “intense shelling” that, among other targets, killed ISIS fighters and destroyed weapons depots.  As a result of such offensives, ISIS is not attempting to control territory but rather conduct a guerilla-style war using “hit-and-run attacks” that are aiming “to take hostages, release prisoners and seize cash.

Tragically, the fact of the matter is that the longer ISIS was in control of an area, the worse it was for the civilian population, and the harder it will be for the people to recover.

Limiting the lawful use of force doesn’t save lives when it allows monsters like ISIS to continue to do their evil.

Indeed, whenever a strike is foregone for a reason other than one mandated by the law of war or operational reasons, it simply cannot be assumed that harm to civilians is avoided as the target who might have been neutralized can live on to commit all kinds of atrocities – something I call the “moral hazard of inaction in war.”

British philosopher John Stuart Mill observed in his 1859 essay that a “person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury.”

Notwithstanding Haque’s criticisms, one thing is apparent: the liberation of almost eight million people – not to mention the 34,000 square miles – from ISIS domination in Syria and Iraq was not accomplished by law professors or NGOs or journalists, it was the result of the use of force by the U.S.-led Coalition which largely followed the DoD’s interpretation of the relevant law of war.

As Ney made clear, the U.S. and other Coalition partners are constantly evaluating operations in order to improve civilian protection, and DoD has taken concrete and inclusive steps toward that goal.  Haque may disagree, but his denigration of the U.S.’s (and, really, the Coalition’s) view of the law as “garbage in, garbage out” is not just wrong, it’s profoundly unhelpful to the sort of constructive, collaborative dialogue that might help better protect civilians from the horrors of war.

Still, as we like to say on Lawfire®, gather the facts, assess the law and the arguments, and decide for yourself!

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