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A Just Security Debate!—What’s Wrong with the DNI Report on Civilian Casualties

 

[Editor’s Note: Watch this space for a response by Ryan Goodman and Marty Lederman]

There’s something very wrong with the Director of National Intelligence report (full text) on the number of civilians killed in U.S. military strikes “outside areas of active hostilities” in 2016, and reported on by Ryan Goodman here. The official tally of one civilian killed is not credible, because it is built on several premises ranging from questionable to incoherent.

We know that the government considers hostilities involving the military and “outside areas of active hostilities” to fall within the scope of application of the laws of armed conflict. (See recent remarks of State Department Legal Advisor Brian Egan: “…in every case in which the United States takes military action, whether in or outside an area of active hostilities, we are bound to adhere as a matter of international law to the law of armed conflict.”) Although the law of armed conflict can apply outside areas of active hostilities, Egan’s statement is false and dangerous. Not only is the United States not bound to adhere to the law of armed conflict in “every case in which the United States takes military action,” the United States is bound by international law NOT to apply law of armed conflict rules to its military activities outside the context of armed conflict. When and where the law of armed conflict applies isn’t determined merely by whether the action is or is not conducted by the military. It’s determined by the identifiability of parties operating under a command structure and the frequency or severity of hostilities. The distinction is important because in war, lethal force may be used simply on the basis of someone’s identity or status as a member of enemy armed forces – in other words, regardless of whether or not the target is actively engaged in hostilities or individually poses a threat. This person is usually referred to as a “combatant.” Outside of war, on the other hand, lethal force is prohibited by human rights law, except in the very narrow situation of self-defense, that is, in the face of attack or imminent threat of attack. Outside of war there are no combatants, so these people, even if lawfully subject to the use of lethal force, are civilians. More importantly, it’s wrong to apply the more permissive killing rules of the law of war to situations governed by the more restrictive rules of human rights law.

Second, that’s why it is significant – and wrong – that a report limited to targeting “outside areas of active hostilities” in situations that do not involve armed conflict speaks of “combatants” and “civilians.” Further evidence that our government misconstrues the distinction between “combatant” and “civilian” is found in the report’s convoluted footnote:

“Non-combatants are individuals who may not be made the object of attack under applicable international law. The term “non-combatant” does not include an individual who is part of a belligerent party to an armed conflict, an individual who is taking a direct part in hostilities, or an individual who is targetable in the exercise of U.S. national self-defense. Males of military age may be non-combatants; it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants.”

Instead of saying what a combatant is, the report says what a non-combatant is not. Let’s, for simplicity’s sake, remove the double negative from the operative text of the footnote:

‘The term “combatant” includes an individual who is part of a belligerent party to an armed conflict, an individual who is taking a direct part in hostilities, or an individual who is targetable in the exercise of U.S. national self-defense.’

In accordance with the well-settled view that the law of armed conflict applies only to frequent and/or severe hostilities between two or more identifiable parties – and not simply on the basis that an action is military in nature – none of the three categories of individuals in this definition are, in fact, necessarily targetable in a state in which there are no “active hostilities.” Where there is no armed conflict (war), there are no individuals who are “part of a belligerent party to an armed conflict.” Likewise, where there is no armed conflict, there are no individuals “taking a direct part in hostilities” in an armed conflict. And most obviously, an individual “targetable in the exercise of U.S. national self-defense” (as distinct from an individual targetable in war) is not a combatant.

The upshot of all this is that many of those targeted as combatants were likely killed either under an inappropriate application of the laws of war to situations that are not armed conflict or under an overbroad application of the term “combatant” in situations that are armed conflict. All these people qualify as “civilian.”

Third, as to those targeted outside the rubric of armed conflict under a “self-defense” theory, the United States plays a double linguistic game with lethal consequences. Where it seeks to justify targeting on the basis of an “imminent threat” (rather than in response to an actual attack) it applies imprecise, elastic and overly-broad concepts of imminence to include threats of an uncertain nature that could materialize in the future – the antithesis of “imminent.” Here is what the Obama Justice Department said about the meaning of “imminent.” Note again the use of a negative construction (“does not require”) creating the illusion of definition without actually providing one:

“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Most debate on civilian casualty numbers does not center on the first-order question: whether individuals should have been targeted in the first place. Rather the debate has placed undue emphasis on the second-order question: whether the government is, in fact, acknowledging the true number of deaths of persons it did not mean or want to kill. The United States reportedly dropped over 26,000 bombs in 2016. While the vast majority fell on countries considered by the United States to be zones of active hostilities at the time (Syria, Iraq, Afghanistan, parts of Libya) many fell on people in Somalia, Yemen, and Pakistan, countries with which the United States is not “at war,” and in which U.S. claims to be at war with non-state armed groups are factually and legally suspect.  Not coincidentally, virtually all those bombs were dropped on seven Muslim-majority countries where we have limited ability to conduct an after-the-fact investigation. Given these numbers, the assertion that only one civilian was killed in attacks outside areas of active hostilities is simply not credible, even before consideration of the overly-broad application of law-of-war targeting authority. When the proper limits of such authority are taken into account, it becomes clear that our government has been either willfully ignorant of applicable law, or is simply trying to pull a fast one on us.

Image: U.S. Air Force photo/Airman 1st Class Jonathan Steffe

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About the Author

is a Visiting Professor of Law and Director of the Law and Armed Conflict Project at Cardozo Law School.