Questions for the Defense Department’s General Counsel

On Monday, Nov. 28 at 6 p.m., Jennifer O’Connor, general counsel of the Department of Defense, is giving a talk at NYU School of Law on “Applying the Law of Targeting to the Modern Battlefield‎.” Her speech will be followed by a question and answer session, which will be moderated by Dean Trevor Morrison. You can RSVP HERE.

To prepare for the event, some of Just Security’s editors* compiled a list of  questions that we hope O’Connor might address. Note there is an email on the RSVP page for the public to submit questions.

1. What advice would you give your successor in terms of balancing legal principles that often have some ambiguity in them with the strong policy preferences of senior political leaders?

2. Does the US Government consider all or some of Additional Protocols I and II of the Geneva Conventions to be customary international law? If so, what parts?

3. Is the United States at war or in a non-international armed conflict with all or some of al-Shabaab? If our recent strikes against al-Shabaab are in collective self-defense, who is the force that we are defending: U.S.-trained AMISOM forces? Others? If so, how imminent were the threats to those entities justifying a self-defense rationale?

4. Can you explain the substantive legal basis on which you determine if a group falls within the scope of the AUMF as an “associated force,” so that its members may be targeted?  What are the limits on this — must a group first engage in active hostilities or direct attacks against the US?  And is there a list of such groups internally?  Do you regularly update Congress regarding who is on this list?  

5. Can you explain the methodology used to determine when someone who is not a drone target is deemed a “civilian casualty”? Do you include as civilian casualties military-aged individuals who die while supporting the force in noncombat roles, such as cooks, drivers, etc.?

6. What investigative process does DOD use after a drone strike to ensure that civilian casualties did not occur?  Under what circumstances does the US pay compensation to victims of drone strikes?  What efforts have you taken to establish a consistent protocol for investigations and compensation for civilian casualties for all uses of lethal force by the DOD, including drone strikes?

7. The next application of the law of targeting may occur with lethal autonomous weapon systems, where difficult questions of human control and judgment abound, and principles of distinction and proportionality may need to be programmed into the weapon system itself.  Some have taken the view that these weapons are per se unlawful under international law.  The U.S. government, for its part, has not addressed the implications of international humanitarian law for these weapons.  What can you tell us about the Department of Defense’s current thinking on how IHL will translate to this rapidly emerging mode of armed conflict?

8. What standard of humane treatment do you use for determining whether to hand over captured fighters from ISIS or other groups to other states for prosecution or detention?

The following questions for O’Connor relate to the DoD Law of War Manual, which has been the subject of a number of posts (see here).

1. The manual is 1,200 pages long, yet never mentions the rule of Additional Protocol I that attackers must “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives.” The ICRC, among others, found that this rule reflects customary international law.

Instead, the manual states that: 

In assessing whether a person or object that normally does not have any military purpose or use is a military objective, commanders and other decision-makers must make the decision in good faith based on the information available to them in light of the circumstances ruling at the time.

Are these rules coextensive or do they differ in material respects? In particular, do attackers have an affirmative obligation to seek as much information as the circumstances permit before attacking a person or object?

For example, the U.S. aircrew that leveled a hospital in Kunduz, Afghanistan, killing 42 civilians, had some information that the building they attacked was a lawful target. However, the circumstances seemed to permit them to wait to gather additional information before launching their attack. Did they satisfy or violate their legal obligations under the DoD’s proposed rule?

2. Additional Protocol I provides that, in cases of doubt regarding a person’s legal status, that person should be considered a civilian entitled to full legal protection. Military lawyers seem to agree that, under customary law, doubt regarding a person’s legal status may render an attack on that person unlawful, although the degree of doubt necessary to preclude lawful attack may vary based on the circumstances.

In contrast, the manual states that: 

Under customary international law, no legal presumption of civilian status exists for persons or objects, nor is there any rule inhibiting commanders or other military personnel from acting based on the information available to him or her in doubtful cases.

According to the manual, customary law only prohibits attacks “based on merely hypothetical or speculative considerations regarding their possible current status as a military objective.”

Is it the view of the DoD that it may be lawful to attack a person or object when the available evidence is very weak, though not “hypothetical or speculative”? What if the evidence indicates that the person or object is “probably” or “more likely than not” a lawful target, but there is no military necessity to attack immediately rather than wait and seek additional information? Again, the U.S. airstrike on the Kunduz hospital seems illustrative.

3. The manual states that harm to human shields “would be understood not to prohibit attacks under the proportionality rule.” Does this mean that harm to human shields can never render an attack disproportionate, no matter how great the expected civilian harm and no matter how small the anticipated military advantage? Does this position apply to civilians forced to actively shield military targets (for example, civilians in Mosul forced near ISIS targets under extreme duress)? What about civilians used to passively shield military targets without their knowledge or consent (for example, when an armed group locates weapons caches in a residential neighborhood, school, or hospital)?

4. The manual states that it is lawful to target civilians who “effectively and substantially contribute to an adversary’s ability to conduct or sustain combat operations.” The manual illustrates its position with the example of Vietnamese villagers “of all ages and sexes [who], willingly or under duress, served as porters [for] . . . communist forces.” Is it the view of DoD that children forced to serve as porters for opposing forces are lawful targets?

More broadly, how can civilians under the control of an armed group, such as ISIL, know which contributory acts will be considered sufficiently effective and substantial as to deprive them of legal protection from attack and collateral harm?

5. The manual states that “[c]ivilians … share in the responsibility to take precautions for their own protection.” The manual illustrates its position with a 1907 source that states that:

[t]he inhabitants of such a [defended] place, . . . become charged with the knowledge that the town is defended and, as such, liable to attack, and, if they desire to secure an immunity from acts of war, should remove their families and belongings from the zone of active military operations.

Is it the view of DoD that, say, civilians in ISIL controlled areas have a legal duty to flee their homes? If they do not flee their homes, do they lose any kind or degree of legal protection? If not, what is the legal significance of this passage?

6. The manual states that “civilians workers who place themselves in or on a military objective, knowing that it is susceptible to attack . . . are deemed to have assumed the risk of incidental harm from military operations.” According to the manual, harm to such civilian workers will not render an attack disproportionate.

According to the manual, military objectives may include port facilities and airfields; highways, railroads, waterways, and bridges; road networks; electric power stations; oil refining, production, transportation, storage, and distribution facilities; and villages, towns, or cities.

Is it the view of DoD that all civilians who work in any of these military objectives assume the risk of incidental harm, such that harm to these civilians can never render an attack disproportionate, no matter how great the expected harm and no matter how small the anticipated military advantage?

7. Protocol I prohibits, as an indiscriminate attack, an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.

In 1,200 pages, the manual never mentions this rule, although it accepts a specific rule regarding incendiary weapons. Does the DoD believe that such attacks are lawful so long as they do not use incendiary weapons?

8. Protocol I provides that:

[w]hen a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.

The ICRC illustrates this rule by noting that, during World War II,

[i]nstead of attacking railway stations, which are usually located in towns, the railway lines were hit at crucial points, but away from inhabited areas; the same action was taken with respect to roads. Such examples show that it is possible to choose objectives so that their destruction does not imperil the population and civilian objects, while still gaining the same military advantage.

The manual states that “this rule is not a requirement of customary international law.” Is it the view of DoD that, to use the same example, it is lawful to attack a railway station full of civilians, subject only to the proportionality rule, even if the very same military advantage could be obtained by destroying an isolated strip of railway track?

* Ryan Goodman did not participate because he is helping organize the event for NYU.

Image: The U.S. Defense Department

 

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