The government’s treatment of civilian casualties in counterterrorism operations [updated]

The government has just released two important documents. One is an assessment by the Director of National Intelligence of the cumulative civilian casualties from U.S. counterterrorism “strikes” outside areas of active hostilities — which it defines as all nations apart from Afghanistan, Iraq, and Syria — from January 2009 through 2015. The other document is an Executive Order issued by the President that requires more robust protection of civilians than international law demands in all U.S. operations, and that requires publication of an annual report assessing civilian casualties.

“Areas of Active Hostilities”[updated]

Before turning to a brief description of these new documents, it’s worth flagging that the DNI’s definition of “areas of active hostilities” is noteworthy, because it presumably clarifies as well the nations in which the Presidential Policy Guidance (PPG) of May 2013 presumptively applies. Recall that the PPG limits U.S. uses of force outside “areas of active hostilities” to targets that pose “a continuing, imminent threat to U.S. persons,” and that these criteria must be met before lethal action may be taken:

1) Near certainty that the terrorist target is present;
2) Near certainty that non-combatants will not be injured or killed;
3) An assessment that capture is not feasible at the time of the operation;
4) An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and
5) An assessment that no other reasonable alternatives exist to effectively addressthe threat to U.S. persons.

The DNI’s release indicates that the PPG generally applies to all uses of lethal force outside Afghanistan, Iraq, and Syria — something that had been unclear until now, especially with respect to possible operations in the FATA. A “Fact Sheet” also released today, confirms this. It indicates that a U.S. use of lethal force falls outside the PPG in two settings: (i) “when the United States is taking action in ‘areas of active hostilities,’ such as it is today in Afghanistan, Iraq, and Syria”; and (ii) in certain “force protection” situations — presumably even outside such areas of active hostilities — where there is no time to ensure the limitations of the PPG, namely, “when the United States is acting quickly to defend U.S. or partner forces from attack.” (And even in those non-PPG settings, the Administration represents that “the United States goes to extraordinary lengths to minimize the risk of civilian casualties.”) I think, therefore, it is safe to infer that if and when the U.S. uses lethal force in the FATA, it is bound by the PPG, except that some or all of the PPG’s limitations (particularly the requirement of a threat to U.S. persons) do not apply in cases where “the United States is acting quickly to defend U.S. or partner forces from attack.”

The DNI Release

The DNI release states that over the almost seven years in question, 473 strikes have resulted in the deaths of 64 to 116 “non-combatants,” i.e., civilians who could not themselves be targeted, and 2,372 to 2,581 combatants. These numbers are based upon “review processes have evolved over time to ensure that they incorporate the best available all-source intelligence, media reporting, and other information and may result in reassessments of strikes if new information becomes available that alters the original judgment.” The DNI refers to a “large volume of pre- and post-strike data available to the U.S. Government,” including “video observations, human sources and assets, signals intelligence, geospatial intelligence, accounts from local officials on the ground, and open source reporting” to determine whether those killed by strikes had “undertaken certain acts that reliably connote meaningful integration” into an enemy armed force.

The DNI acknowledges that these numbers differ markedly from those reported by some nongovernmental organizations. The DNI explains the discrepancy principally by pointing to the “combination of sources” available to the United States that “is unique and can provide insights that are likely unavailable to non-governmental organizations.”

There is, I think, no reason to doubt that the government is following the President’s standards for determining who is and who is not a nontargetable civilian, or that the Administration is acting in good faith in making its assessments of collateral harm. Even so, in the absence of granular details about specific strikes, many observers will naturally remain skeptical of the Administration’s numbers. Unfortunately, there might not be much that can be done — not retrospectively, in any event — to breach this gap, and to alleviate much of the skepticism, for two reasons. First, many of the strikes remain operations that the United States believes it still may not acknowledge at all, either as a matter of law or of diplomacy, or some combination thereof. Thankfully, this practice appears to be changing somewhat, however, at least going forward — the Executive branch appears to be making efforts not to put itself, as often, in a position where it cannot acknowledge its use of lethal force. (The new Executive Order, for instance, generally requires agencies that carry out strikes to acknowledge U.S. responsibility for civilian deaths.)

Even where operations can be acknowledged, however, the second, and larger, barrier to more granular transparency is that much of the U.S.’s information about the identity of those killed or injured depends upon intelligence — especially human intelligence — that cannot be shared without burning sources and methods. I honestly don’t know that there’s any easy solution to this particular aspect of the problem.

[UPDATE: One other thing: The cumulative totals do not distinguish between strikes that preceded issuance of the PPG in 2013 and those that followed it. It would be very useful for the Administration to provide such a breakdown, if only to offer some sense of the practical effects of the PPG.]

The Executive Order

Section 1 of the new Executive Order states that “[a]s a matter of policy, the United States . . . routinely imposes certain heightened policy standards that are more protective than the requirements of the law of armed conflict that relate to the protection of civilians,” and requires that the government “shall maintain and promote best practices that reduce the likelihood of civilian casualties.” Section 2 describes some of those “best practices,” which are not limited to areas outside active hostilities — that is to say, they appear to govern U.S. uses of force generally. [The Fact Sheet expressly notes that the Executive Order “applies to all of our operations, regardless of where they are conducted.”] In particular, Section 2 requires that “relevant agencies* shall . . . , as appropriate and consistent with mission objectives and applicable law, including the law of armed conflict,” do the following things to prevent civilian casualties:

— “train personnel, commensurate with their responsibilities, on compliance with legal obligations and policy guidance that address the protection of civilians and on implementation of best practices that reduce the likelihood of civilian casualties, including through exercises, pre-deployment training, and simulations of complex operational environments that include civilians”;

— “develop, acquire, and field intelligence, surveillance, and reconnaissance systems that, by enabling more accurate battlespace awareness, contribute to the protection of civilians”;

— “develop, acquire, and field weapon systems and other technological capabilities that further enable the discriminate use of force in different operational contexts”;

— “take feasible precautions in conducting attacks to reduce the likelihood of civilian casualties, such as providing warnings to the civilian population (unless the circumstances do not permit), adjusting the timing of attacks, taking steps to ensure military objectives and civilians are clearly distinguished, and taking other measures appropriate to the circumstances”;

— “conduct assessments that assist in the reduction of civilian casualties by identifying risks to civilians and evaluating efforts to reduce risks to civilians”;

and, importantly, take these measures after strikes are conducted:

— “review or investigate incidents involving civilian casualties, including by considering relevant and credible information from all available sources, such as other agencies, partner governments, and nongovernmental organizations, and take measures to mitigate the likelihood of future incidents of civilian casualties”; and

— “acknowledge U.S. Government responsibility for civilian casualties and offer condolences, including ex gratia payments, to civilians who are injured or to the families of civilians who are killed.”*

Section 3 requires the DNI to release a public report by May 1 of each year that shall provide the government’s “assessments of combatant and non-combatant deaths” resulting from “strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities” during the previous calendar year, “consistent with the need to protect sources and methods.” That report “shall also include information obtained from relevant agencies regarding the general sources of information and methodology used to conduct these assessments and, as feasible and appropriate, shall address the general reasons for discrepancies between post-strike assessments from the U.S. Government and credible reporting from nongovernmental organizations regarding non-combatant deaths resulting from strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities.”

The documents released today do not explain why the DNI’s assessment of casualty numbers from 2009-2015 does not also provide an annual breakdown, as will be required going forward.

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* I’m reliably informed that the reference to “relevant” agencies is not intended to suggest that any agencies are not bound by the E.O. — all agencies are bound — but instead is simply to reflect the fact that some of the obligations in the E.O., such as performing investigations or making ex gratia payments, are naturally fulfilled by some agencies rather than others. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).