We know now that last Sunday’s ground operation in Yemen (also discussed here, here, and here) against an alleged Al Qaida in the Arab Peninsula (AQAP) target resulted in tragic consequences, including U.S. military and several civilian casualties. It is that loss of life that raises important questions about the relevant principles of the law of armed conflict: distinction, proportionality and precaution.
An NBC report on Sunday’s attack in Yemen quoted a senior unnamed U.S military official: “Almost everything went wrong.” The speed with which authorities, to their credit, admitted the number of civilian casualties, including an American child, after first having denied any, was surprising, but suggests that the United States may be playing fast and loose with three fundamental principles of the international law of armed conflict, otherwise known as international humanitarian law or the law of war. First, the principle of distinction: those who plan and conduct attacks must distinguish between combatants and civilians. The former are subject to attack. The latter are not, and must be protected from attack. Second, the principle of proportionality: civilian casualties resulting from attacks on combatants may not be excessive compared to the anticipated military advantage gained by the attack. Third, the principle of precaution: the attacker must take feasible measures before the attack to assure that the target is a legitimate military objective and that civilian harm, if any, is not disproportionate to the anticipated military advantage.
Of course, these rules that permit killing on the basis of a person’s status as a “member” of an entity with whom we are “at war” apply only when and where we are, indeed, at war. Reasonable and smart people differ over whether the United States is “at war” in Yemen. I think it’s a close call, but the threshold for triggering application of the law of war is fuzzy (frequent and/or severe hostilities between organized armed groups – in this case, between the United States and AQAP as distinct from the civil war in Yemen). So let’s give the United States the benefit of the doubt.
But then who counts as a combatant in this war? What metrics are used to determine who is a “member” of Al Qaeda and whether mere membership in an enemy organization (as opposed to its armed forces) suffices? Does it matter, for instance, that you are 14 years old as opposed to 11 or 50 as opposed to 70? That you are female? That you are visiting rather than resident in the target structure? That you lend money or cook for the fighters rather than engage in the fight? (On our side, that could be a taxpayer or a civilian contractor, respectively). You may be a criminal under U.S. law, but that doesn’t necessarily make you targetable. While the recently revised Law of War Manual attempts to provide some guidance, we simply don’t know exactly how the U.S. answers these questions, critical to application of the principle of distinction.
We also don’t know what precautions the United States takes to assure that only military objectives are targeted and to avoid disproportionate civilian casualties. The initial Department of Defense report of “no civilian casualties” was revised after a Yemeni official claimed that at least 15 women and children ages 3-13 were killed. The Yemen attack was under consideration in the latter days of the Obama administration, which ran out of moonless nights to conduct the strike under cover of dark. So surely, the target was under surveillance for some time, providing opportunity to calculate potential “collateral damage.” While any number of reasons, including the phases of the moon, might explain why Obama hesitated but Trump struck, we now have a Commander in Chief who unabashedly supports the notion of committing war crimes by targeting civilians (“You have to take out their families”). In this “new normal,” we, and just as importantly, the rest of the world, have ample reason to doubt the United States’ commitment to the time-honored principles of distinction, proportionality and precaution.
The Obama administration made some welcome attempts to explain its targeting policies and practices, but was still some distance from fully sharing its legal reasoning with the American public. Some argue that secrecy is essential to the success of American military missions, including to the protection of American armed forces. Of course, that’s true. But it is surely possible to better explain general interpretation of applicable international law while guarding specific operational details. We might not be entitled to know the facts surrounding individual attacks, especially in advance, but we surely are entitled to know the rules being applied to determine who is killed in our name. Secret facts, ok; secret law, not. Even if the Trump administration does nothing to retreat from the extent of transparency on targeting exhibited by the Obama administration, the recent Yemen attack illustrates that we’re far from knowing why someone is considered a combatant, what metrics apply to determine how much “collateral damage” is tolerable, and what precautionary measures are required. All things that we are entitled to know.