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Targeting Yemen and the Repeal of Obama Constraints

 

Over at the New York Times, Charlie Savage and Eric Schmitt have written an excellent article on the Trump Administration’s decision to declare three parts of Yemen “areas of active hostilities” to which certain Obama-era targeting restrictions do not apply. Those restrictions, embodied in a 2013 Presidential Policy Guidance (PPG), require near certainty that a lawful target is present, near certainty that no civilians are present, and an assessment that capture of the lawful target is not feasible prior to attack.

The decision to narrow the application of the PPG has enabled a dramatic escalation of U.S. airstrikes in Yemen, a country already devastated by Saudi-led, U.S.-backed bombardment. Since these restrictions help U.S. forces avoid mistakenly targeting or collaterally harming civilians, their suspension will predictably result in more civilian deaths. Disturbingly, “[s]everal officials said Mr. Trump signed off on making parts of Yemen an active-hostilities zone at the same dinner … where he approved the ill-fated raid on a Qaeda compound in Yemen.”

Apparently, a similar policy change is planned for parts of Somalia. One wonders if that decision, between life and death for Somali civilians, will also be made over dinner.

One item of interest to Just Security readers appears at the very end of the article: 

On Jan. 28, Mr. Trump signed a presidential national security memorandum directing the military to give him a plan within 30 days to defeat the Islamic State. It said the plan should include “recommended changes to any United States rules of engagement and other United States policy restrictions that exceed the requirements of international law regarding the use of force,” a veiled reference to rescinding the 2013 limits on airstrikes.

But the momentum for rapid change broke, the officials said, after the Yemen raid, which resulted in numerous civilian deaths, including of children; the death of a member of the Navy’s SEAL Team 6 and the wounding of three others; and the loss of a $75 million aircraft.

As a result, Mr. Trump’s national security advisers—first Michael T. Flynn, who has since resigned, and now Lt. Gen. H. R. McMaster—have slowed the review process down while letting operations in Yemen, and soon Somalia, play out as test runs, the officials said.

Several dozen national security experts, including our very own Luke Hartig, have sent Secretary Mattis a letter urging him to retain the targeting restrictions contained in the PPG. They warn that “even small numbers of unintentional civilian deaths or injuries—whether or not legally permitted—can cause significant strategic setbacks.” As I wrote in an earlier post, such a policy change also carries serious legal risks.

Some might take solace in the fact that the presidential memorandum seems to recognize that U.S. rules of engagement must meet (if not exceed) the requirements of international law. Unfortunately, the Defense Department’s interpretation of international law is significantly more permissive than that of several allies, various international bodies, and many experts. As I suggested in a different post, much may depend on General McMaster’s view of the ethics of war, quite apart from the laws of war.

Image: U.S. Department of Defense

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About the Author

is Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School.  His first book, Law and Morality at War, will be published by Oxford University Press in January. You can follow him on Twitter (@AdHaque110).