The United States bombing of Iran has raised widespread concerns about compliance with the law of armed conflict (LOAC). On April 2, over 100 international law experts published a letter outlining a series of potentially unlawful strikes, including attacks against Iranian politicians, oil and gas infrastructure, health facilities, and homes. The letter highlighted the Feb. 28 attack against the primary school in Minab that resulted in the death of over 175 people. It concluded the strike “likely violates international humanitarian law, and if evidence is found that those responsible were reckless, it could also be a war crime.” In response to that letter, four other experts (each of whom has served as the Army’s Senior Law of War Advisor) expressed concern with the methodology and conclusions reached in the April 2 letter. Their reply asserted that “it is premature and speculative” to conclude this strike was either a violation of LOAC or a war crime. They wrote that any such allegation “requires a credible factual foundation derived from rigorous investigation.”
The purpose of this essay is not to opine on whether the Minab strike was a war crime. The April 2 letter and the April 16 response to it both make valid legal arguments. Nevertheless, it is striking that these experts reach different conclusions about the legality of the attack based on the information publicly available. This disagreement raises an important question. What purpose does LOAC serve if leading experts cannot agree on the legality of a tragic strike that resulted in the death of so many civilians, including children?
Here, I want to consider what this debate means for LOAC, its inherent limitations, and its role in public discourse. LOAC is not suited to provide the legal clarity that the public often desires immediately following attacks that kill civilians. Nor is it designed to serve as a guide for the virtuous conduct of hostilities. LOAC permits extraordinary violence that may contravene societal norms, values, or policy objectives. The mere fact that any given attack does not violate LOAC should not shield it from public scrutiny or criticism.
In recognizing these inherent limitations, we can reconsider the appropriate role for LOAC (and international criminal law) in the public discourse regarding military operations. The rise of international criminal law, including the creation of the International Criminal Court, has led to a greater focus on individual criminal liability for battlefield conduct. This may not always be the best lens to assess collective action or systemic failures. The debate about whether the Minab strike was a war crime, for example, misses a more fundamental point. It was morally and politically reprehensible. Even if no U.S. official committed a war crime, a failure within the U.S. government caused this tragedy. And the United States indisputably bears responsibility for it.
In such cases, international law does not come up empty. Instead of turning straight to individual responsibility for potential war crimes, we should look to the accountability mechanism designed to address collective action: State responsibility. Under these rules, a State that breaches a primary obligation without a clear excuse (like duress) is legally responsible for the breach. The targeting rules in LOAC serve here as the operative obligations, but the breach can be addressed under the rules of State responsibility without the heightened standards and evidentiary burdens of international criminal law.
In the case of the Minab strikes, the United States bears responsibility for the inexcusable killing of these innocent children and their teachers. The United States plainly failed to do everything feasible to verify the attacked building was a military objective rather than a protected school, breaching a LOAC rule that clearly applied, and with no viable excuse. That may or may not be a war crime, but it is an internationally wrongful act that gives rise to State responsibility and the obligation to make reparations.
The Attack on the Minab Primary School
The general facts of the attack are described at length here and summarized below. On Feb. 28, the first day of the war on Iran, the U.S. military struck the primary school in Minab with three successive BGM-109 Tomahawk missiles. The first strike occurred around 10 a.m., when school was in session. The second strike hit the interior prayer room in which children were sheltering after the first strike. The third strike hit close to the prayer room. Reports indicate that approximately 175 people, mostly children, were killed in the strikes. A preliminary investigation found that the U.S. Department of Defense intended to target an Islamic Revolutionary Guard Corps (IRGC) military facility on the same block as the school. DOD reportedly believed, based on outdated satellite imagery, that the targeted structure was part of the IRGC base and a legitimate military objective. In reality, the structure had been converted into a girls’ school between 2013 and 2016. It was clearly separated from the military base, painted in bright colors, and had a playground visible in satellite imagery. It was thus clearly a civilian object at the time of the attack.
According to subsequent reporting, which came out after the exchange between the 100 experts and the former Army Law of War Advisors, the U.S. military overlooked an internal flag from the intelligence community in 2019 noting that the facility had been converted to a school. The targeting database used by DOD had not been updated in the seven years since, and the information about the change to the facility apparently was not seen by targeting officials. A letter from 16 U.S. senators claims that DOD knew “intelligence for the targets was dated, but those warnings were ignored for ‘expediency.’”
What Can LOAC Tell Us About This Strike?
The attack against the school was the deadliest strike in terms of civilian casualties committed by the United States in recent decades. Following such tragedies, there is an impulse to turn to the law for answers. Concerned observers and legal experts want to determine whether the strike was unlawful and/or a war crime. This is a natural impulse. The law provides a common vocabulary that can facilitate discussion and debate, and determining legal compliance can often help assess the blameworthiness of the conduct.
The urge to turn to LOAC for answers in armed conflict, however, runs into several interrelated challenges. These include, as discussed below, degrees of legal indeterminacy in targeting rules, the need to determine what the attacker knew at the time the targeting decision was made, and the general secrecy of military operations. It is thus often difficult for the public to assess the legality of attacks in armed conflict, at least until the government concerned investigates and publicly reports its findings. This difficulty is apparent in the debate on the Minab school strike, but it extends more generally to attacks that cause harm to civilians or civilian infrastructure.
Challenge 1: A Degree of Legal Indeterminacy
The nature of certain LOAC rules makes legal clarity challenging, especially in the immediate aftermath of a particular strike. LOAC’s rules governing targeting establish binary rules regarding the permissible objects of attack (i.e., only combatants and military objectives), but these categories are not defined with bright line rules. The drafters of the Additional Protocols, which codified many of the rules governing the conduct of hostilities, recognized that they could not predict the vast contingencies in war, identify the universe of potential military targets, or address all the difficult decisions that combatants must make on the battlefield. LOAC was designed to account for the chaotic reality of war. It accepts that combatants must act with incomplete information (though they must seek it when feasible and act reasonably given the information they have), that accidents happen, and that rules intended to promote humanitarian objectives must be balanced with military necessity. With respect to many targeting rules, LOAC prioritizes pragmatism over certainty, leading to a degree of legal indeterminacy, particularly for those who do not have all the relevant facts about a particular strike.
This legal indeterminacy is due, in part, to the quasi-subjective nature of decisions that combatants must make under LOAC. The targeting rules of LOAC are primarily directed at human decision-making and judgment rather than the results of an attack. (LOAC rules protecting detainees or civilian internees, by contrast, are more objective in nature.) Combatants must make these decisions in good faith, but they are afforded “a fairly broad margin of judgment” in doing so.
For example, LOAC prohibits the intentional targeting of civilians, but civilians may be incidentally killed as collateral damage in attacks directed against military objectives. It is only when the expected collateral damage is “excessive in relation to the concrete and direct military advantage anticipated” that an attack becomes unlawful under the principle of proportionality codified in Article 51 of Additional Protocol I (API). This test has “subjective aspects.” DoD LOW Manual, 5.10.2.3. Reasonable minds may differ on both how to quantify and balance military advantage and civilian harm. Given the quasi-subjective nature of this assessment, the Rome Statute to the International Criminal Court requires that the expected harm to civilians be “clearly excessive” to constitute a war crime. Article 8(2)(b)(iv).
A similar challenge arises in determining whether a targeted object was a valid military objective or a protected civilian object. Apart from weapons and military equipment, “there are no categories of targets that universally qualify as military objectives.” Article 52(2) of API defines military objectives as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction …, in the circumstances ruling at the time, offers a definite military advantage.” Even objects normally dedicated to civilian purposes (e.g., oil refineries or even hospitals) can become lawful targets if used to support the enemy’s military action. Again, there are subjective elements to this definition, as combatants must determine the “effective contribution” of an object and the “definite military advantage” of destroying it.
Other targeting rules entail similar subjective and context-based judgments that are difficult—sometimes impossible—to evaluate without knowledge of what a commander knew and how they evaluated it. Civilians lose protection from attack if they “directly participate in hostilities,” which requires an assessment of likely harm, causation, and belligerent nexus. The rule on feasible precautions in attack requires an assessment of what is “practically possible,” taking into account both “humanitarian and military considerations.” DoD LOWM 5.2.3.2. The nature of these targeting rules makes it difficult for outside observers to assess compliance.
Challenge 2: Ex Ante Assessments Based on Information at the Time of Attack
The second challenge to legal clarity is epistemic. The judgments combatants make under LOAC cannot be evaluated based on the outcome of an attack or with the benefit of hindsight. Civilian death or destruction of civilian objects are not, standing alone, evidence of LOAC violations. Rather, combatants’ judgments must be assessed in light of the “information available to them at the time” of attack. See DoD LOWM, 5.3.2. There is no strict liability in LOAC for accidents or good faith mistakes.
Reconstructing this information is inherently challenging. Even when it is possible to identify what the attacker knew at the time, it may be difficult for outside observers to determine whether the decision was reasonable under the circumstances. Assessing compliance with rules like proportionality (Article 51 of API) requires an understanding of the operation’s particular context, as well as the broader military strategy. As several contributors to Just Security have noted, “the nature and extent of the military advantage often will not be apparent to an observer, making it difficult to assess whether collateral damage is excessive.”
For this reason, combatants’ decisions are generally assessed by a “reasonable commander” standard rather than a “reasonable person” one. The reasonable commander standard requires an understanding of a variety of factors, including the operational environment, the weapons used, the tactical and strategic objectives, the information reasonably available to the commander at the time of the attack, and the intent of the commander, which the general public often lacks.
Challenge 3: Government Transparency
The general secrecy of military operations further complicates the public’s ability to assess LOAC compliance. Governments may refuse (often for good reason) to disclose the intelligence that informed targeting decisions. Similarly, they may not be willing to proactively and transparently investigate their own militaries’ conduct, despite the obligation under international law to investigate credible allegations of serious LOAC violations. (For DOD, the obligation to report and investigate such violations is set forth in DoDD 2311.01, Section 4). Absent the cooperation of the government, there is no clear mechanism for other States or international tribunals to compel or conduct such investigations without a decision by the United Nations Security Council under Chapter VII. Prior attempts to create international mechanisms to discuss LOAC compliance were resisted by States for fear that such mechanisms would be politicized.
Even where the State does investigate potential LOAC violations, as the United States did with the torture at Abu Ghraib prison in Iraq and the 2015 strike on Kunduz hospital in Afghanistan, this process can be lengthy, and internal investigations can be insufficient. The results may not be released for months or even years, and aspects of the investigation can remain redacted for classification reasons.
The Limits of LOAC in Facilitating Public Accountability
The challenges identified above hinder the public’s ability to assess LOAC compliance in real time and to promote accountability for unlawful conduct. LOAC, however, was not designed to facilitate public accountability. It was primarily intended to be self-enforcing by individual combatants and within the chain of command. There is a treaty obligation to prosecute or extradite perpetrators of grave breaches of the Geneva Conventions, but the difficulty in establishing grave breaches of the targeting rules limits the utility of this enforcement mechanism outside the detention or internment context.
The rules on targeting do not establish objective metrics for compliance, as combatants cannot completely control the effects of attacks. As described above, these rules are directed internally at the judgments commanders make, as these are what they can control. As a practical matter, LOAC’s effectiveness in regulating the conduct of hostilities depends largely on combatants’ sense of honor and chivalry, military training and discipline, the ability of military lawyers to offer independent legal advice, States’ commitment to upholding their legal obligations, and States’ understanding that LOAC compliance is generally in their own “strong self-interest.” See DoD LOWM 18.2. States can also enhance LOAC compliance by taking proactive measures to gain a more contextualized understanding of an area of operations (like patterns of civilian life) and the foreseeable impacts of operations on civilian populations, incorporating those findings into rules of engagement (no-strike lists), and embedding civilian harm-mitigation experts into targeting teams (as DOD did prior to the current administration).
The former DOD lawyers were correct in concluding that it is premature to conclude that war crimes were committed in the strike against the Minab school. None of the experts who signed the April 2 letter likely had access to the classified information that would enable them to definitively say whether any U.S. commander committed war crimes related to the strike. That said, the experts did not purport to make definitive conclusions for the same reason (and the allegations in the letter were appropriately caveated in my view).
The DOD lawyers’ response also highlights the frustrating aspects of LOAC, which may erode its perceived legitimacy. It demonstrates the difficulty in achieving legal clarity in the absence of a proactive and transparent government. It notes that LOAC sometimes tolerates horrific mistakes or accidents, even when strikes kill dozens of innocent children. Their response acknowledges the challenges to holding anyone accountable for such tragedies.
The conclusion of their letter that it is premature to allege violations of LOAC begs the question of what the legal community should do in the aftermath of a horrific attack, such as the Minab school strike. Should we remain silent until the Trump administration chooses to disclose all the information necessary to make legal conclusions? Should we hope that those who planned or carried out unlawful attacks incriminate themselves? Should we blindly accept whatever findings the Trump administration makes? None of these options are palatable.
The Challenge for LOAC Going Forward
The modest goals of LOAC appear to increasingly fall short of public expectations. With the ubiquity of cell phone cameras and the rise in reporting about civilian casualties, there is a desire to quickly assess the legality of military operations. But publicly available information about the effects of attacks cannot tell the full legal story without greater transparency about the information available to commanders or the intended military advantage of strikes in question. The disconnect between public expectations and what LOAC can deliver has strained the legal framework and threatened its perceived legitimacy.
This frustration with LOAC is not new. It has fueled efforts over the years to replace or modify the quasi-subjective, standard-like rules of LOAC (e.g., the principle of proportionality) with more objective rules that would make violations easier to detect. A prominent example was the ICTY Trial Chamber judgment in the case of Ante Gotovina, a general in the Croatian military charged with indiscriminately shelling Knin during the Balkans War. Given the difficulty in discerning the attacking party’s intent, the Trial Chamber proposed an objective test for assessing whether artillery attacks were indiscriminate. The Chamber drew a 200-meter radius around each military objective in Knin based on testimony about the accuracy of artillery attacks from that distance. It presumed that artillery landing within that 200-meter radius was directed at the military objective and thus lawful. Shells landing outside the radius were presumed to be indiscriminate. The Trial Chamber convicted Gotovina and his co-defendants based on the evidence that some (albeit small) percentage of artillery shells landed outside this 200-meter radius. The Appeals Chamber reversed the conviction in a controversial 3-2 decision, likely influenced by an amicus brief submitted by a group of former military lawyers criticizing the Trial Chamber’s judgment as imposing an “operationally untenable” standard.
Other efforts to develop more objective rules include the treaty bans on weapons that pose a risk of indiscriminate use (anti-personnel landmines and cluster munitions), campaigns to prohibit or limit weapons that pose a risk of excessive collateral damage (explosive weapons with wide area effects in populated areas and nuclear weapons) and calls to ban or revise the definition of incendiary weapons in Protocol III of the Convention on Certain Conventional Weapons.
The United States has generally opposed these efforts, arguing that they elevate humanitarian considerations over military ones or that they can create strict liability for combatants. Militaries naturally want to maximize their flexibility in choosing means and methods of warfare. At the same time, States should be concerned about the potential for LOAC to lose legitimacy. States cannot expect the public to accept the current framework if they exploit the challenges for assessing compliance inherent in LOAC to shield themselves from scrutiny. They cannot expect LOAC to remain relevant in the public eye if horrific tragedies like Minab are not credibly and transparently investigated. They cannot use LOAC to legitimize violence if the public loses faith in it.
Thoughts on the Way Forward
States need to think seriously about how to strengthen and enforce LOAC compliance before it loses public legitimacy. This risk has increased significantly under the Trump administration, which has belittled the importance of LOAC and military lawyers, pardoned accused U.S. war criminals, emphasized “maximum lethality” over civilian protection, and slashed resources for civilian harm mitigation and response efforts. The United States must urgently work to reinforce respect for LOAC within its own military and reclaim its former role as a leader in promoting LOAC compliance globally. In the meantime, the legal community can help shape the role LOAC plays in public discourse.
First, legal experts should continue to raise concerns about LOAC compliance, shifting the burden on the government to provide evidence to the contrary. Experts should insist that States comply with their obligations to investigate allegations of serious LOAC violations and promote an institutional culture that values transparency and accountability. The April 2 letter was a welcome effort in this regard. States often seek to justify military action by reference to LOAC, and they should similarly be pressured to account for attacks that may fall short of its minimum requirements. DOD’s reported refusal to conduct a comprehensive investigation into the Minab strike, as required by DoDD 2311.01, should thus be widely criticized.
Second, while not discounting the importance of LOAC compliance, we should also recognize the limits of LOAC rules to provide clear answers to normative or ethical questions. LOAC establishes the minimum requirements for the conduct of hostilities. As ICRC Legal Adviser, Cordula Droege, notes, it “doesn’t set standards for model behavior.” We do not need legal clarity, or indeed a complete accounting of all the facts, to meaningfully criticize State conduct in war. Even if a particular attack may not amount to a war crime, such as the attack on the Minab school or the 2015 strike against the MSF facility in Kunduz, it may be morally reprehensible or contrary to policy objectives. Determining that an attack is unlawful is not a prerequisite to criticizing it. The lack of clarity on the law should not hamstring society’s efforts to hold militaries or their civilian leadership politically and morally accountable. We do not need a full accounting of the Minab strike to condemn it as horrific on multiple levels.
Third, we should focus to a greater extent on the rules of State responsibility. The modern rise of international criminal law, starting with the international tribunals in Yugoslavia and Rwanda and then the creation of the International Criminal Court, has shifted public attention to individual criminal responsibility. This new focus was salutary in many ways, as the international community should seek accountability for perpetrators of heinous crimes. Yet, for the reasons described above, determining individual liability in targeting cases can be exceedingly difficult due to the need to establish the knowledge of the attacker and the circumstances of the attack. Assessing liability for war crimes is further complicated, as seen in the legal community’s different responses to the Minab attack, by disagreements on the applicable mens rea standard (i.e., recklessness, knowledge, or intent).
In many cases, State responsibility may be the more appropriate mode of responsibility, and easier to establish, than individual criminal liability. Consider the attack against the school in Minab. The American public may never have access to information necessary to determine whether those who planned or carried out the attack acted with the requisite recklessness or knowledge for their actions to be considered war crimes. The attack likely involved dozens of actors, each performing different roles in planning and carrying out the strike. It is possible that no single actor is (or should be) held criminally responsible for this horrific tragedy.
At the same time, the strike was not an innocuous mistake. It was the result of a systematic failure by the U.S. government, which launched an unlawful war of choice without proper planning, defined end-goals, or lawyers empowered to provide independent legal advice. Setting aside the question of war crimes, it is clear that the United States did not comply with the obligation (codified in Article 57 of API and part of customary international law) to “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects …” The DOD Law of War Manual notes this obligation includes “[c]hecking the potential target locations against no-strike and sensitive site lists” and “[r]eviewing previously approved targets at reasonable intervals … to ascertain whether enemy forces continue to use the object for military purposes.” Section 5.5.3. Relying on outdated satellite imagery to plan the attack, and failing to address internal warnings that the facility had been converted into a civilian school, was a clear violation of this requirement.
Non-compliance with Article 57 is generally not considered a war crime. It is, however, an internationally wrongful act that triggers the international responsibility of the State, including the obligation to provide “full reparation for the injury caused by the internationally wrongful act.” In this case, the wrongful act by the United States directly caused the deaths of over a hundred innocent children. Rather than focusing on individual responsibility for the strike, it may be more productive to focus on demanding a full accounting of the strike and reinforcing the responsibility of the United States for this inexcusable tragedy.
The devastating wars in Gaza, Ukraine, Sudan, and Iran are revealing the weakness and fragility of LOAC. Allegations of war crimes are reported with a numbing frequency, and a sense of impunity seems deeply entrenched in all three conflicts. States must undertake serious efforts to strengthen LOAC if we are to avoid descending the slippery slope toward total warfare. While the prospect of new efforts to strengthen and update LOAC may seem remote at the moment, the international legal community can still take meaningful action. We must start by recognizing the inherent limits of LOAC. We should not conflate legal uncertainty with normative ambiguity; nor should we permit States to use LOAC as a shield from legitimate criticism. We should also pay greater attention to enforcing the rules on State responsibility, which may provide a more effective mechanism for promoting accountability.
