This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

On June 6, the New York Times published “The Secret History of SEAL Team 6: Quiet Killings and Blurred Lines,” a piece describing a number of operations in Afghanistan, which, if the Times’ reporting is true, raise serious concerns about the unit’s compliance with the laws of war. Moreover, both the article’s claims and the lack of attention its publication has drawn suggest a worrisome reluctance to carry out investigations into reports of serious violations of international humanitarian law (IHL). Highlighted below are some of the allegations that would merit inquiry into the team’s respect for IHL.

I. Targeting

First, consider the following quotes and excerpts from the article describing potentially indiscriminate target choices, resulting in the death of a number of non-combatants. 

Afghan villagers and a British commander accused SEALs of indiscriminately killing men in one hamlet; in 2009, team members joined C.I.A. and Afghan paramilitary forces in a raid that left a group of youths dead …

A former senior SEAL told the Times:

“Whether they were facilitators, Taliban subcommanders, Taliban commanders, financiers, it no longer became important.” Another former member said, “By 2010, guys were going after street thugs.”

The Times quotes the book No Hero by Matt Bisonnette, an ex-Team 6 member. He writes of night raids into suspected insurgents’ houses where, “If I caught them with a gun, I killed them, just like all the guys in the command.”

Another former Team 6 member: described how one SEAL sniper killed three unarmed people, including a small girl, in separate episodes in Afghanistan and told his superiors that he felt they had posed a threat.

That sniper was apparently forced out of Team 6 after the incident, though his actions were said to be legal by the Times.

A half-dozen former officers and enlisted troops who were interviewed said they knew of civilian deaths caused by Team 6. Mr. Slabinski, a former senior enlisted member of SEAL Team 6, said he witnessed Team 6 members mistakenly kill civilians “probably four or five times” during his deployments.

The Times describes the commander of a Team 6 mission in Afghanistan alleged to have resulted in civilian deaths as saying: they had killed all the men they encountered because they all had guns, according to the former Team 6 member and a military official. That commander is now in charge of the regular SEAL teams on the East Coast of the United States.

Another former senior Team 6 member contended later that Mr. Slabinski, Blue Squadron’s command master chief, gave pre-mission guidance that every male at the target be killed. Mr. Slabinski denied that, saying there was no policy to leave all men dead. “I didn’t ever convey that to the guys,” he said in an interview.

Finally, the Times describes the aftermath of a 2009 mission that killed 10 residents of the Afghan village, Ghazi Khan.

The purpose of the mission was to capture or kill a senior Taliban operative, but it was quickly apparent that no Taliban leaders were present at the target. The mission had been based on faulty intelligence, a problem that bedeviled United States military operations even after years in Afghanistan. A former governor of the province investigated, and accused the Americans of killing unarmed schoolboys. The United Nations mission in Afghanistan issued a statement saying that an initial investigation had concluded that “eight of those killed were students enrolled in local schools.”

The excerpts above suggest that the SEALs were directly targeting men with guns, or just men, in stark contrast to IHL, which restricts direct targeting to combatants and persons who are directly participating in hostilities.

Combatants are members of state armed forces as well as members of an organized armed group of a party to the conflict. However, debate among experts persists as to whether members of an organized armed group comprise only those with a “continuous combat function” or rather a broader range of individuals who somehow support those engaged in combat (the 2015 US DOD Law of War Manual would include in this range a person who performs tasks similar to those provided in “combat support” or “combat service support” in the armed forces of a State). Whatever the approach may be, persons who are not considered members of an organized armed group of a party to the conflict are civilians and are entitled to protection against direct attack unless and for such time as they directly participate in hostilities. In light of this, it is difficult to see, as the article appropriately asks, “how, in a country where many men carried guns, Team 6 could ‘guarantee that we’re only going after the real bad guys.’

Meanwhile, the allegations of raids that killed “youths,” “unarmed people,” “civilians,” and “unarmed schoolboys” raise even more questions about the standard that the team applied in identifying and verifying targets. Even though war can indeed make it difficult to accurately assess the facts on the ground, IHL requires that parties to a conflict do everything feasible to verify that targets are military objectives. (See both here and page 196 of the 2015 DOD Manual for relevant US practice.) Of course, the lawfulness of an attack is assessed according to information reasonably available at the time of attack.

Even if objectives were properly identified and targeted, the Times’ report of civilian deaths also raises questions about whether the rule of proportionality was respected. While it is legally accepted that civilian persons and objects may be incidentally harmed when a legitimate military objective is attacked, the rule of proportionality requires that “incidental loss” of civilian life or property must not be excessive in relation to the concrete and direct military advantage anticipated from an attack against a military objective. The International Criminal Tribunal for the Former Yugoslavia has said, “in determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.” The article’s allegations of civilian losses, such as the death of schoolboys, elicit questions about how the proportionality rule was applied in these attacks.

II. Tactics

Some of the tactics described by the article invite questions about military necessity and also expose some paradoxical outcomes of IHL compliance.

Consider this line:

Operators would use weapons with suppressors to quietly kill enemies as they slept, an act that they defend as no different from dropping a bomb on an enemy barracks. “I snuck into people’s houses while they were sleeping.”

Or this passage:

After years of refining techniques to sneak up on enemy compounds, Team 6 members were often required to “call out” before attacking a site, akin to a sheriff announcing through a bullhorn, “Come out with your hands up.” Mr. Slabinski said that civilian casualties occurred most often during the “call out” operations, which were meant to mitigate exactly such losses. Enemy combatants, he said, would sometimes send out family members and then shoot from behind them, or give civilians flashlights and tell them to point out American positions.

Such tactics, as reported, may raise questions of military necessity. For instance, killing enemies in their sleep could appear to have exceeded whatever force might have been necessary to meet the military purpose in the circumstances. The new DOD Manual does state that “combatants who are standing in a mess line, engaging in recreational activities, or sleeping remain the lawful object of attack, provided they are not placed hors de combat.” But the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities recommends restraint beyond IHL’s restrictions on means and methods of warfare, by limiting the kind and degree of force used to “what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.” This position is not necessarily widely shared, as illustrated in the DOD Manual.

Interestingly, the tactic of “calling out” before attacking may well have met the IHL requirement to give effective advance warning when circumstances permit, but it perversely led to the enemy’s use of civilians as shields and potentially even participants in hostilities. This means that the family members used to shield fighters would have been at heightened risk of incidental harm if the fighters were attacked, and those using flashlights to point to American positions might even have been considered targetable as direct participants in hostilities. The ICRC’s Interpretive Guidance does, however, state that in extreme circumstances, the involuntary nature of such conduct could call into question the person’s direct participation in hostilities: The “belligerent nexus,” which is the requirement that the conduct be “specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another” might not be met if the act is physically coerced.

III. Weapons

The NYT piece describes the use of advanced weaponry (a new rifle, lasers, and thermal optics) that would have enhanced the forces’ ability to ensure respect for the fundamental rules on distinction, proportionality, and precautions. But it also describes the use of tomahawk hatchets and thermobaric grenades, weapons whose use could raise questions about compliance with the prohibition of means and methods of warfare that by nature are indiscriminate or cause superfluous injury or unnecessary suffering. (In the Nuclear Weapons case, the International Court of Justice defined unnecessary suffering as “a harm greater than that unavoidable to achieve legitimate military objectives.”)

The SEALs’ armorers customized a new German-made rifle and equipped nearly every weapon with suppressors, which reduce gunshot sounds and muzzle flashes. Infrared lasers enabling the SEALs to shoot more accurately at night became standard issue, as did thermal optics to detect body heat. The SEALs were equipped with a new generation of grenade — a thermobaric model that is particularly effective in making buildings collapse.

Thermobaric missiles or bombs have caused concern because of their particularly powerful, wide-area blast waves and the high temperatures they generate, causing fires and terrible wounds. They have been described as “among the most horrific weapons in any army’s collection: the thermobaric bomb, a fearsome explosive that sets fire to the air above its target, then sucks the oxygen out of anyone unfortunate enough to have lived through the initial blast.” A 2013 article explained, “the largest thermobaric weapons are sometimes compared to small nuclear bombs. The blast wave obliterates people close the detonation while crushing and destroying the internal organs of victims who are a little further afield.” More information would be needed to know whether the effects of thermobaric grenades would be a cause for similar concern.

Meanwhile, the SEALs also used updated versions of centuries-old tomahawks:

[S]ome men carried the hatchets on missions, and at least one killed an enemy fighter with the weapon. … He added that hatchet and blade kills occurred during his time with the SEALs. … “It’s a dirty business,” said one former senior enlisted Team 6 member. “What’s the difference between shooting them as I was told and pulling out a knife and stabbing them or hatcheting them?”

On the use of tomahawks, DOD’s new Law of War Manual states, “Stabbing or cutting weapons (e.g., knives, bayonets, swords, lances, and tomahawks) are not specifically prohibited or restricted by the law of war. Like other weapons, however, they must not be calculated to cause superfluous injury.” (Emphasis added) One of the first appearances of the rationale for the rule on superfluous injury and unnecessary suffering was in the St. Petersburg Declaration of 1868, the preamble of which states, “That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men; That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity.” If, as the article reports, “Many SEAL operators rejected any use of tomahawks — saying they were too bulky to take into combat and not as effective as firearms,” then the deliberate use of tomahawks instead of modern weaponry could elicit questions as to the type of suffering they may have caused.

IV. Protection of persons who are “out of the battle”

Persons who are “out of the battle” — or hors de combat — are protected from attack under IHL. These comprise persons who (a) are in the power of an adverse Party, (b) clearly express an intention to surrender, or (c) have been rendered unconscious or otherwise incapacitated by wounds or sickness, and therefore incapable of defending themselves, provided that in any of these cases they abstain from any hostile act and do not attempt to escape.

Several passages from the article describe incidents where the SEALs may have killed or unnecessarily used force against fighters who were hors de combat.

Noting that they shoot to kill, a former noncommissioned officer added that the operators fire “security rounds” into those who are down to ensure that they are dead.

There appears to be one case of what may be the killing of an unarmed prisoner by the SEALs:

The physician said in an interview that a 19-year-old named Wallakah was the sole kidnapper to survive the initial assault. He had been subdued by the SEAL operators and sat on the ground, hands around his knees, his head down, the doctor remembered. Wallakah, he believed, was the one who had shot the Team 6 operator. Minutes later, while waiting to board a helicopter to freedom, Dr. Joseph said, one of his SEAL rescuers guided him back into the house, where he saw in the moonlight that Wallakah was lying in a pool of blood, dead.

Shooting “security rounds” into an injured fighter and killing a subdued fighter would have violated the prohibition on attacks on persons who are hors de combat, and, in other words, defenseless. Instead, these persons are always owed humane treatment.

V. Respect for the dead

The article reports instances of mutilation of the dead, which is strictly prohibited under IHL.

At times, the troops carried out the grisliest of tasks: cutting off fingers or small patches of scalp for DNA analysis from militants they had just killed.

“He said that around the time of that raid he had been disturbed after witnessing one of the younger operators slashing at the throat of a dead Taliban fighter. “It appeared he was mutilating a body,” … The Naval Criminal Investigative Service later concluded the operator might have been cutting off gear from the dead fighter’s chest.”

Cutting off fingers or patches of scalp and slashing the throats of dead fighters is a violation of the absolute prohibition on mutilation of dead bodies, itself an application of the general prohibition of “outrages upon personal dignity, in particular humiliating and degrading treatment.” (In fact, under the Rome Statute of the International Criminal Court, mutilating dead bodies is covered by the war crime of “committing outrages upon personal dignity.”)

While it could be argued that the fingertips and patches of scalp were merely meant to identify the dead, it is important to note that the prohibition leaves no exception, nor does the new DOD Manual: “Enemy military dead must be protected from disrespectful or degrading acts. For example, mutilation or cannibalism of dead bodies is prohibited.” Against this backdrop, it is worth noting that a 2011 Times piece referring to US military operations in Afghanistan reported that US forces in fact had the technology to scan fingerprints and irises. The Commentary to Article 17 of the First Geneva Convention and Article 20 of the Second Geneva Convention, which both foresee a requirement to carefully examine bodies with a view to establishing the identity of the dead (among other purposes), provides examples of old-fashioned identification methods that do not remotely envisage mutilation. Instead, these methods, listed long before today’s biometric technology was developed, include the taking of “measurements and description of the body and its physical features, examination of the teeth, fingerprints, photograph, etc.”

 VI. Investigation and accountability

Finally, the Times piece reports a recurrent failure to adequately investigate allegations of serious violations of IHL, in other words war crimes, despite assertions that “[a]ll allegations of misconduct are taken seriously,” and “[s]ubstantiated findings are dealt with by military or law enforcement authorities.”

Consider the following excerpts from throughout the piece:

“When suspicions have been raised about misconduct, outside oversight has been limited.” Joint Special Operations Command, which overseas SEAL Team 6 missions, conducted its own inquiries into more than a half-dozen episodes, but seldom referred them to Navy investigators. “JSOC investigates JSOC, and that’s part of the problem,” …

“But the bulwark of secrecy around Team 6 makes it impossible to fully assess its record and the consequences of its actions, including civilian casualties …”

Several former officers said they routinely questioned Team 6 operators when their suspicions were raised about unwarranted killings, but they usually found no clear evidence of wrongdoing. “There was no incentive to dig deep on that,” said a former senior Special Operations officer.

In other inquiries, which were usually handled by JSOC, not Navy investigators, no one faced any charges. Typically, men were sent home when concerns arose; three, for example, were sent back to Dam Neck after roughing up a detainee during an interrogation, one former officer said, as were some team members involved in questionable killings.

There may indeed be practical challenges in carrying out investigations on the battlefield (and carrying out operations at night “in dark rooms with few witnesses and beyond the view of a camera” would not have helped), yet such constraining circumstances will never discharge States of their duty under IHL to investigate war crimes allegedly committed by their nationals or armed forces, and, if appropriate, prosecute the suspects. According to investigation reports such as the 2009 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, the 2013 report of the Turkel Commission to Examine the Maritime Incident of 31 May 2010, and today’s Report of the detailed findings of the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict, investigations should strive to meet standards of independence, impartiality, effectiveness, promptness, thoroughness, and transparency.

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The Times’ piece on Team 6’s Afghanistan operations raises a number of serious concerns about compliance with IHL, ranging from the choice of targets to the treatment of persons who were no longer fighting and the absence of investigations into allegations of serious violations. Despite the “dirty business” of war, the rules demand respect, credible claims of war crimes require investigation, and offenders must be prosecuted.