The law, the Baghuz airstrike, and accusations of a possible “war crime” and “cover-up”

Should the immediate reaction to civilian casualties in a complex combat operation be a “possible war crimes” allegation?  Or should some preliminary effort be made to ascertain the soldier’s reasoning and mindset before making that devastating accusation?  Can reasonable people differ in their evaluation of a tangled factual situation, and what to do about it?  Can things be more complicated than they seem? 

These are some of the issues raised in a very disturbing story in Sunday’s New York Times about a airstrike that took place in Syria during the last days of the ISIS caliphate.  According to the article, the 2019 strike killed 70 civilians in a what it says was a “crowd of women and children huddled against a river bank.” 

The Times further alleges:

The Baghuz strike was one of the largest civilian casualty incidents of the war against the Islamic State, but it has never been publicly acknowledged by the U.S. military.  The details, reported here for the first time, show that the death toll was almost immediately apparent to military officials.  A legal officer flagged the strike as a possible war crime that required an investigation.  But at nearly every step, the military made moves that concealed the catastrophic strike.

Let’s unpack this article based on the facts as alleged in the article, and compare it against the international law of war, and other factors, so you can make your own assessment. 

The context

I urge you to read the lengthy Times article for yourself to get full rendition of the allegations.  Essentially, the Times accuses what it characterizes as a “secretive commando” task force operating almost independently in Syria as being responsible for the strike.  Indeed, the Times says that in “the case of the Baghuz bombing, the American Air Force command in Qatar had no idea the strike was coming.”

The strike, the Times reports, came about this way.

At about 10 a.m., local Syrian forces reported they were under fire and in danger of being overrun, and called for an airstrike, Central Command said.  The task force drone tracked a group of fighters as they made their way through the camp to the area where the women and children sheltered.

A Special Forces officer on the ground reviewed video from his task force’s standard-definition drone and “didn’t see any civilians.”  The Times concedes:

A Syrian videographer, Gihad Darwish, captured airstrikes in the area matching that description as he filmed from a rocky bluff above the camp. The footage shows that ground troops may not have been able to see the group of civilians.

The officer gave the order to fire.  Unbeknownst to him, the Air Force Command Center in Qatar had a high-definition drone overhead that reportedly did see the women and children.

When that command center saw the strike on its drone video, the Air Force lawyer there, the Times said, “believed he had witnessed possible war crimes” and they had to be reported to the highest levels of the Department of Defense (DoD) per DoD instructions. 

Much of the rest of the article alleges that the case was never properly reported or fully investigated – the plain implication being that there was a cover-up of a war crime. 

Let’s start our review by looking at the reporting requirement.

The reporting requirement

The relevant DoD is 2311.01, DoD Law of War ProgramPara 4.1 states:

All military and U.S. civilian employees, contractor personnel, and subcontractors assigned to or accompanying a DoD Component must report through their chain of command all reportable incidents, including those involving allegations of non-DoD personnel having violated the law of war.

Here’s the DoDI’s definition of a “reportable incident”:

An incident that a unit commander or other responsible official
determines, based on credible information, potentially involves: a
war crime; other violations of the law of war; or conduct during
military operations that would be a war crime if the military
operations occurred in the context of an armed conflict. The unit
commander or responsible official need not determine that a potential
violation occurred, only that credible information merits further
review of the incident.

What is a “war crime” as used in the DoDI?  It defines it this way:

Serious violations of the law of war that generally have been
committed intentionally, such as murder, torture, rape, pillage,
extensive and wanton destruction of property without justification,
and intentionally directing attacks against the civilian population or
civilians protected as such. “War crimes” may be defined differently
in other contexts for other legal purposes.

In a 2016 post on Just Security Professor Ryan Goodman of New York University School of Law does a superb job of explaining the mental state that’s necessary to turn an action into a war crime.  Importantly, he starts out with a couple of critical axioms that are especially apt as to the current allegations:

“Not all military strikes involving civilian casualties, even if expected and significant in number, are violations of the law of armed conflict.  Not all violations of the law of armed conflict are war crimes.”

Yes, even if “expected” and “significant in number” civilian casualties are not necessarily violations of the law of war.  This is a vitally important concept to understand because otherwise every instance of civilian casualties however lawfully justified might become a “reportable incident” as a “possible war crime” under the DoD Law of War Program.  That would be a result surely not intended as the DoDI anticipates not a reflexive reporting, but rather the application of human judgment as to whether or not there is “credible” information to make the incident “reportable.”    

The existence of civilian casualties, even if “significant in number” do not alone necessarily constitute “credible information” supporting a law of war violation – and nothing in the DoDI suggests it does.  The DoDI does not require, for example, the reporting of all incidents of civilian casualties.  Of course, combatant commanders may choose to voluntarily report such incidents for any number of reasons, but that isn’t the same as mandatory notifications of matters characterized as “reportable incidents” under the DoD Law of War Program.  

Some more targeting law

Here’s some more targeting law that may be helpful in this case: while civilians cannot be directly targeted (this is the principle of distinction between targetable combatants and non-targetable civilians), they can become incidental casualties without the attacker violating the law so long as such losses are not “excessive in relation to the concrete and direct military advantage anticipated.”  This is what international law calls the principle of proportionality.

Additionally, Professor Goodman makes much the same point as the DoDI does with respect to the mental state necessary for war crimes; both sources essentially say the crime requires the perpetrator to willfully kill civilians knowing they are protected civilians (please read his full post to get all the nuances).

He also addresses “[o]ther violations of the law of armed conflict not amounting to a war crime.”  For those, he finds the necessary state of mind to be one where “the attacker engag[es] in an attack in which the attacker should have known the probable consequence would be to kill civilians or destroy civilian objects in violation of the principle of distinction (or proportionality).” (Underlining in original)

How much information must the attacker have?  The DoD Law of War Manual addresses this issue in paragraph 5.3 Assessing Information Under the Law of War.  Here’s part of it:

Commanders and other decision-makers must make decisions in good faith and based on the information available to them.  Even when information is imperfect or lacking (as will frequently be the case during armed conflict), commanders and other decision-makers may direct and conduct military operations, so long as they make a good faith assessment of the information that is available to them at that time. (Emphasis added.) 

Notably, the U.S. and most nations hold that “such decisions cannot be judged on the basis of information which has subsequently come to light.”  (Emphasis added).

Professor Goodman additionally contends that a violation of the law of armed conflict that does not rise to the level of a war crime could nevertheless arise from a “[f]ailure to take all feasible precautions to minimize harm to civilians and civilian objects.”

What precautions are “feasible”?  The DoD Law of War (LoW) Manual addresses this issue in paragraph 5.2.3.2.  Here’s what is says in part:

The standard for what precautions must be taken is one of due regard or diligence, not an absolute requirement to do everything possible.  A wanton disregard for civilian casualties or harm to other protected persons and objects is clearly prohibited.  Feasible precautions are those that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.

Another section of the LoW Manual makes this point: “Since what precautions are feasible depends greatly on the context and other military considerations, it would be inaccurate to conclude that specific precautions are required as a general rule.”

What about those killed?

As noted above, the Times has already concluded that the Baghuz strike was “one of the largest civilian casualty incidents” of the conflict against ISIS.  In doing so it evidently dismisses a statement they obtained last week from U.S. Central Command about the strike.  Here’s how the Times relates it:

[T]he command acknowledged the strikes for the first time, saying 80 people were killed but the airstrikes were justified.  It said the bombs killed 16 fighters and four civilians.  As for the other 60 people killed, the statement said it was not clear that they were civilians, in part because women and children in the Islamic State sometimes took up arms.

In truth, one should not be quick to dismiss the idea that ISIS women and even children in some instances can lose their protected status as “civilians” for purposes of the law of war.  For example, voluntary presence in the ISIS camp could indicate membership in ISIS – an entity engaged in continuous combat operations against the U.S. and its allies.  

If it can be reasonably concluded they are ISIS members, that determination can make them lawfully targetable persons in the same way that members of conventional military in a war between two nation-states are considered lawfully targetable persons, irrespective of what they might be doing at the moment of an attack.  Likewise, any civilian who directly participates on hostilities, can be subject to otherwise lawful attacks. 

Would such conclusions about women be plausible, or must we automatically assume, as the Times seems to have done, the females could play no role in ISIS hostilities?

Actually, by the time the airstrike took place, ISIS was using women as fighters. Professor Elena Pokalova concluded in 2019 article:

Though ISIS leaders originally preferred women stay home to care for men and children, this changed when the group started losing territory in 2015. In December 2016, the group’s al-Naba magazine appealed to women to prepare for jihad. Ten months later, ISIS issued an unprecedented call to women urging them to prepare “themselves as mujahidat [female warrior] in the cause of Allah.  Female ISIS fighters were spotted in the battle for Mosul in 2017. In February 2018, ISIS released a video that purportedly showed women fighting alongside male mujahedeen.  It is reasonable to assume that ISIS leaders will continue to rely on women to replenish its fighting force, and even dispatch female agents to stage terrorist attacks across the world. 

Other scholars have come to similar conclusions.  Writing in 2019 about female ISIS fighters, Harvard scholar Vera Mironova said in a New York Times article “the rise of women as combatants represents a significant shift in a group notorious for its strict gender roles and misogyny.”  She added:

[T]he move to allow female combatants is born out of desperation. The group has lost essentially all its territory.  Most of its male fighters have been killed, wounded or arrested, according to Raid Hamid, chief investigative judge at the Mosul terrorism court.

What about children?  As deeply disturbing as it is, international law also recognizes that at times even children can be targetable.  Under the law of war thedeliberate targeting of legitimate targets is lawful without any condition based on age.” (Emphasis added.)

Horrifyingly, ISIS made systematic use of children in roles that could lawfully put them in the gun sights.  For example, Time Magazine reported in May of 2019 that ISIS kidnapped children and “forced them to fight.”  In addition, Time says many “were sent to the front lines where fighting was bloodiest, forced to wear suicide belts at all times, with instructions to blow themselves up if the enemy got too close.”

Another article by three analysts explains how ISIS used children in battlefield roles:

The children had numerous uses for ISIS.  While weaker, smaller, and less disciplined than adults, children served on the battlefield alongside adult ISIS soldiers as human shields.  Others were also deployed as suicide bombers. For example, a 12-year-old ISIS member was martyred as a suicide bomber, killing 53 people at a Kurdish wedding in Turkey in 2016.

Additionally, in propaganda films “children are shown in uniforms executing kneeling prisoners clothed in orange jumpsuits.”  The analysts also said:

While ISIS is now defeated on the battlefield, the caliphate’s online propaganda war continues to inspire foreigners to commit one-wolf terrorist acts.  Within Syria, ISIS followers are waging an underground insurgency.  Most of the ISIS children are now living in refugee camps that have become hotbeds of radicalization.  In Iraq, where criminal responsibility starts at the age of nine, dozens of children have been prosecuted for crimes, regardless of the fact that they were exploited.

What does it all mean?

Given the Times article, it seems that a full and public explication of the facts would be wise.  At a minimum, there are certainly important ‘lessons to be learned’ about coordination and target verification.  It could also be an opportunity to explain to the public how hard targeting can be in complex combat situations. 

That said, is the interpretation of the bombing implied by the Times article the only plausible one?  Ask yourself this: was a “war crime” or a “violation of the law of war” really implicated based on what we know from the Times report?  Or could reasonable minds differ about it?  And if that is the case, was there really a cover-up?

The Times article indicates no controversy about these facts:

a) the special forces officer on the ground received a report that local Syrian forces “were under fire and in danger of being overrun”;

b) the “task force drone tracked a group of fighters as they made their way through the camp to the area where the women and children sheltered”; and

c) the task force drone lacked the visual fidelity to enable the special forces officer to see the women and children.

If they were the facts as known prior to the strike, was the special forces commander acting unreasonably at the time?  Simply because another headquarters might have had better information than the battlefield commander, does that mean a war crime occurred?

Couldn’t all this make it plausible for a reasonable person to conclude that an accusation of a possible law of war violation was not warranted?  Wouldn’t such a conclusion also be supported by the absence of any evidence suggesting that there was any intent by anyone to willfully attack legally-protected civilians?

Indeed, shouldn’t at least some minimal effort have been made in this instance to determine the rationale and mindset of anyone involved in ordering the attack before raising the spectre of war crimes?  Did the Times article show any evidence at any point in the timeline that the officer ordering the strike deliberately targeted civilians?  That he did not act in “good faith”?

As Professor Goodman explains, civilian casualties alone are not proof of a violation of the law of war.  Should then their mere existence nevertheless trigger a war crimes allegation?

Or should American servicemembers, especially those at the tip of the proverbial spear, be entitled to the presumption of innocence? 

Accusing someone of a war crime is one of the most devastating allegations that can be made against anyone, but especially a military professional.  Studies show that the mere allegation of criminal misconduct can produce serious psychological damage with live-long consequences, even if the accused is later exonerated.

Clearly, such accusations should not be made lightly, or based on speculation – as has been the case in the past.

Let’s also not forget that mistakes, errors and accidents are inevitable consequences of combat, and they are not necessarily “war crimes” even where significant civilian casualties result.  This is particularly so in a conflict where the enemy does not wear uniforms, employs human shields, seeks to orchestrate civilian casualty incidents, uses women and children as fighters, and deliberately hides among legally-protected civilians.

At the same time, however, there is a legal and moral obligation to investigate suspected war crimes, and hold perpetrators accountable.  Was the investigation that did take place sufficient?  Or was it necessary to use a particular investigatory route as some believe?  Could reasonable people have come to differing conclusions about how to best handle this case?

Decide for yourself.

Concluding observations

To an extent, the Times did put this strike in some context of the larger air campaign:

At the height of its rule in 2014, the Islamic State controlled an area of Syria and Iraq about the size of Tennessee.  A fleet of coalition drones, jets, attack helicopters and heavy bombers hit enemy positions with about 35,000 strikes over the next five years, plowing a path for local Kurdish and Arab militias to reclaim ground.

At the end of the grinding fight, airstrikes corralled the last Islamic State fighters in a scrap of farmland against the Euphrates River near Baghuz.  Coalition air power forced thousands to surrender, sparing the lives of untold numbers of Kurdish and Arab allies.  (Emphasis added.)

Unfortunately, despite all of the technology, the chaos and fog” of war inevitably involves Clausewitzian friction…and this can result in tragedies no one intended.  When it is necessary to conduct 35,000 airstrikes to help to spare “the lives of untold numbers of Kurdish and Arab allies” it is almost guaranteed that at least some of those attacks will go terribly wrong.

To reiterate, when things do go wrong, we need figure out why, and hold those accountable as may be necessary and appropriate.  At the same time, however, we must not be too precipitous about making criminal charges as that could easily demoralize the troops, especially those America sends into the most difficult and dangerous combat situations.

Obviously, we need to ferret out cover-ups.  That said, does a cover-up necessarily exist simply because someone in authority makes a decision about contested facts about which reasonable people could disagree?  In my view, it is very appropriate and necessary to examine every instance of unintended or unexpected civilian casualties.  Acting immediately to preserve evidence in such situations is also prudent and wise.

However, more than the mere existence of civilian casualties (which, as explained above, do not ipso facto establish a violation of the law of war) ought to be required before an inquiry that specifically operates under the inflammatory aegis of a “possible war crimes” allegation is triggered. 

Why not start out with the presumption of innocence?  Aren’t these situations often far more legally and factually complicated than they may seem at first blush?

Shouldn’t we begin with an impartial fact-gathering process not based on an accusatory “possible war crime” rationale that can be so easily misunderstood and exploited?

Of course, if the facts develop in a preliminary examination so as to make a formal “war crimes” investigation necessary, so be it.  However, leaping to that assessment prematurely can lead to a stigma on individuals–not to mention the U.S. military writ large–that can be all but impossible to remove, even if the ultimate investigatory outcome exonerates. 

When that happens, the only winner is the enemy

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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