Can States Legally Provide Targeting Assistance to War Criminals?

Last week, when I challenged an argument for US liability for war crimes in Yemen, I didn’t anticipate ending up on the other side of a (somewhat heated) Twitter debate with a host of leading human rights advocates. Thankfully, Scott Paul, Senior Humanitarian Policy Advisor with Oxfam America, brought that debate back to Just Security today, with an important piece criticizing my post and making the case for US liability for international humanitarian law (IHL) violations in Yemen.

In response, first, I want to clear up a fundamental misunderstanding or misrepresentation of my specific position on US assistance to the Saudi-led operations in Yemen. Second, I then hone in on the general legal issues of when and how States can lawfully provide IHL assistance to war criminals — issues over which Paul and I seemingly disagree.

First, in order to contextualize my argument, it’s probably helpful to look at two excerpts that inspired me to write it. The first quote — and the real focal point of the debate — came from Human Rights Watch’s Sarah Leah Whitson in the LA Times:

“The U.S. Defense Department has vaguely stated that it is providing ‘targeting assistance,’ which as a matter of law means it is liable for unlawful strikes in which it takes part” (emphasis added).

The second excerpt is a quote from Ryan Goodman in a post on Just Security, where he interpreted Whitson as suggesting that even assistance limited to improving IHL compliance, could give rise to liability:

I disagree with those who suggest that any targeting assistance that the US Defense Department may provide the Saudi-led coalition “as a matter of law means [the United States] is liable for unlawful strikes in which it takes part.” Such a rule would discourage States from … helping [recipients] … comply with the law of armed conflict.”

When I read Goodman’s post, I worried that he and Whitson might be operating under two different definitions of “targeting assistance,” and that she might not have meant to suggest that even pure IHL assistance could give rise to liability. Nevertheless, I thought that Goodman’s substantive argument was important and worth developing further — even though I couldn’t be sure that Whitson or many other human rights advocates actually took the view that he was opposing. So, I decided to write an argument about why the logic of the human rights community in Holder v. Humanitarian Law Project demands that we allow States to provide IHL assistance to war criminals.

In light of my uncertainty about Whitson’s (and other human rights activists’) views, I explicitly made the following concession:

“[M]aybe those arguing that the US is necessarily liable for providing targeting assistance on unlawful strikes did not intend to extend that argument to cases where the DOD merely provided assistance directed towards ensuring compliance with IHL.”

In spite of this concession, Paul suggests that I simply “assume” targeting assistance includes pure IHL assistance (e.g., IHL legal advice and technical assistance to foster compliance), and that my “erroneous conflation” of the two serves to misrepresent Whitson’s views. But I think my concession above shows that my argument, considered in its entirety, wasn’t making that assumption.

Furthermore, Paul contends that I not only invented a disagreement where none existed, but that I also wrongfully suggest that “targeting assistance” is the key focal point of the human rights community’s arguments for US wrongdoing in Yemen. In his view, my piece disingenuously chooses “to ignore human rights organizations’ other principal concerns” in favor of attacking a straw man argument.

I’m not sure why Paul read my piece this way (some others didn’t). I don’t think I claimed, and I never meant to imply, that my argument was a comprehensive rebuttal of the human rights community’s case for US liability for Saudi war crimes. On the contrary — I have been persuaded by other human rights advocates that the US is likely guilty of aiding and abetting Saudi war crimes. (I recently asked Sen. Chris Murphy if he would take this position, in a public forum.) Moreover, I believe that even if the US hasn’t specifically assisted with any unlawful strikes, continuing to assist the campaign through arms sales and refueling Saudi warplanes is gravely immoral (if not illegal) and deserves to be condemned.

So yes, I chose to ignore human rights organizations’ principal concerns. But that was because I already shared those concerns. My post was making a very narrow argument: IHL-oriented targeting assistance, without more, is an insufficient basis for aiding and abetting liability, or complicity, or material support, or the like. And, indeed, I fear that advocates will undermine the persuasiveness of their other worthy arguments if they pursue this one.

I hope that clears up my position. I know that many others read my post the same way Paul did. So, I’ll take responsibility for not being clearer on the first go, and say thanks for the opportunity to clarify.

But, putting all the misunderstandings aside, I think two important substantive questions remain unresolved.

The first is: How should we interpret the DoD’s statement that they are providing “targeting assistance”?

Paul argues that the DOD would never say “targeting assistance” if all they were doing was providing IHL-oriented assistance, like pure legal advice. He argues they would call it something like “civilian protection advice” or “legal support” instead. In his view, they say “targeting assistance” precisely “because it is substantially broader than the narrow provision of legal advice.”

But, targeting assistance of the beneficent kind need not be purely legal advice and need not only be words.  What is more, though they may not use the term “civilian protection advice,” the DOD does suggest their targeting assistance is meant to do just that. A spokesman for U.S. Central Command said, “We are confident that the intelligence and advice we pass on to Saudi Arabia and other coalition members is sound, giving them the best options for military success consistent with international norms and mitigating the potential for civilian casualties.” It has also been reported that a component of that advice is designating a no-strike list. That said, the deeper question is: even if the DoD is providing additional targeting assistance, should we penalize the US if it reduced its assistance to the kind that is dedicated to securing compliance with IHL.

As Whitson’s piece suggests, this is not just a matter of semantics. The DOD’s statements can serve as evidence to bolster the claims of US liability. And the strength of that evidence depends on how we interpret it.

This debate raises broader challenging questions about how human rights advocates and legal systems should operate in the face of ambiguity. For example, should IHL employ a rebuttable presumption that all targeting assistance is unlawful, unless the provider can produce evidence their assistance was purely IHL-oriented? Such a rule seems like a good way to prevent bad actors from benefiting from secrecy and ambiguity. On the other hand, a policy of presumptive liability could deter States from providing pure IHL assistance at all.

This brings me to the second set of questions left unresolved by our discussion: Can States provide IHL assistance to war criminals, and if so, when, and what kind?

After a bit of back and forth on Twitter, Whitson stated that she is “fine with pure IHL assistance,” but had also said “given the pattern of indiscriminate strikes, US should cease all assistance.” And Paul seems to stake out an intermediate position: that only “under certain circumstances, it is possible that IHL education and compliance assistance would not aid and abet war crimes.”

As Sarah Knuckey rightly hinted at several times in the Twitter debate, it’s likely that we were all operating under different definitions of “IHL assistance,” just as we weren’t on the same page about “targeting assistance.”

So here, for the sake of clarity, I want to focus first solely on the provision of IHL legal counsel.

I think Paul’s position is that if a State’s legal counsel is motivated by self-interest, rather than humanitarian concerns, they may be liable for aiding and abetting. I, on the other hand, argue that legal counsel should be encouraged, even if it is ultimately for the purpose of preserving the reputation of a key strategic ally, rather than reducing civilian casualties. After all, if the provision of IHL counsel leads to more compliance with the law, then less civilians should be targeted etc. Do we really want to discourage that just because the counselor’s motives weren’t pure?

Other forms of IHL-oriented technical assistance may also be justified. This example may be a bit unrealistic, but imagine if a recipient State uses a completely outdated computer program for estimating collateral damage, and an assisting State provides the technology to upgrade it. This seems to be another example of IHL assistance that we don’t want to discourage States from providing.

Anyway, I hope this piece helps to frame the debate. Especially since we agree on more than we disagree, I appreciate the opportunity to clarify my position and examine where our other points of disagreement lie.

  

About the Author(s)

Jay Shooster

Former Associate Editor and Masiyiwa-Bernstein Fellow at Just Security Follow him on Twitter (@JayShooster).