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Reasons to Distrust Intelligence Report on Civilian Casualties

Ryan Goodman is absolutely correct in what he wrote yesterday at Just Security. I have not proved the claim he attributes to me, namely, that “there is a gross underestimation of casualty figures in the [Director of National Intelligence] DNI report on civilian deaths resulting from US operations outside of areas of active hostilities during 2016, a report which the Obama administration issued in its final days.” That’s because I made no such claim. I did not claim that the report underestimated civilian casualty figures (let alone grossly so). I did say it is LIKELY that the report understates civilian casualties – that people have been “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.”

There are three reasons why the administration’s assertion that it killed only one civilian “outside areas of active hostilities” can’t be trusted. One reason is that it we don’t know where the administration considers itself to be at war, therefore we don’t know if it is using the more ‘liberal’ killing rules of the law of war in places and situations that do not, in fact, amount to war. (Ryan’s suggestion that it’s a “category mistake” to use the term “areas of active hostilities” to decide where the law of war should apply is correct – and again, I made no such assertion – but it misses the point: an area “outside of active hostilities” but in which military activities are being undertaken may be one in which the law of war applies, but not necessarily so.) I don’t dispute that there are wars going on in Somalia, Libya and Yemen. However, whether the United States is a party to those wars, such that it can avail itself of the rules for killing that apply only in war, is a different question. It’s true that a declaration of war is not necessary to, and its absence is not dispositive of, the determination that we are, or are not, “at war.” But when our government refuses to say one way or the other, and declines to provide evidence of facts that would enable us to judge, it would be negligent of us to accord it the benefit of doubt to justify the use of lethal force in our name.

A second reason is that even in contexts that clearly are war (but still may be “outside areas of active hostilities”) our government applies an overly-broad definition of the term “combatant.” And I don’t mean “all military aged males.” For example, after the recent disastrous attack in Yemen in which several civilians were killed, the initial U.S. position was that there were no civilian casualties. While the government swiftly retreated from that claim, the fact that it made that claim at all speaks volumes. One possibility is that it did not know who was killed and retreated to a default notion of “no civilians killed” in the absence of any evidence. This is unlikely given the extent of surveillance on the target prior to the attack. (I should also point out that although the United States does take several liberties with its international legal obligations, it does not refute its law-of-war responsibility to take reasonable precautions to minimize civilian casualties in an attack.) A second possibility is that the United States considered the attack to be justified in spite of the presence of civilians, because it was not applying the Presidential Policy Guidance (PPG) that endeavors to achieve a zero civilian casualty count. Now, even where the PPG isn’t applied, the law of war prohibits civilian casualties that are disproportionate to the military advantage gained in targeting legitimate military objectives. In line with this second possibility is the fact that if you “over-apply” the term “combatant,” you will “under-apply” the notion of “civilian.” The fact, noted by Ryan, that the PPG provides for more forbearance than is required under the law of war changes nothing where the law of war doesn’t apply, or where it does apply but the PPG is not applied, or where the PPG is applied but the term “combatant” is construed to include persons that are, in fact, civilians.

The third reason is that our government also justifies certain killings outside the context of war on the ground that the targets pose an “imminent” threat of attack against us. So far so good, until you see that the United States construes the term “imminent” to mean exactly its opposite: “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.”

As long as our government asserts definitions of “armed conflict,” “combatant” and “imminent threat” that are at odds with the established understanding of those terms under international law, its claims of civilian casualties are likely to be lowballed and simply cannot be trusted. And as long as our government denies us the information necessary to determine how it applies these terms to “facts on the ground,” it is wrong to suggest that the burden is on those of us on the outside to prove that our government is dissembling.


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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.