There are now two very different competing pictures about whether the United States mistakenly struck a mosque in Syria on the night of March 16, 2017. On one view, based on  three independent reports—by Human Rights Watch, Bellingcat, and the University of London’s Forensic Architecture—along with some supplemental information from AirWars and White Helmets, the U.S. military struck the Umar Ibn Al-Khattab Mosque in Aleppo killing at least 38 civilians, including 5 children. That’s obviously not the current official U.S. view, but the government has not done enough to counter it.

Secretary James Mattis and the Department of Defense should now make every effort to get out in front of this issue. Given the reputation of the organizations reporting on the strike, this incident will fester in the minds of current and former U.S. personnel who are not familiar with the intelligence or the details of the operation, and it will damage U.S. credibility right when the U.S. is pressuring Syria for its attacks on civilians.

To its credit, the Department of Defense did well to acknowledge the operation and to launch an investigation into the reported civilian casualties. But the willingness of the Department and unnamed officials to make some statements about the incident but not clear up other issues leaves much to be desired.

There’s obviously a delicate balance here, which includes protecting intelligence information, handling the pace of other urgent military matters, and making sure any investigation has the time and patience needed to reach determinations with sufficient clarity before making more conclusive public statements. Still, the current state of limbo on the alleged “mosque strike” is coming at a price.

Very soon after the operation, the Pentagon released a powerful aerial photograph showing that “a mosque” was left undamaged by the bombing. That image at least had people like me quite convinced. Since then, however, the three independent reports have been released identifying, in their account, a second mosque—the building that the U.S. military targeted and partially demolished. On the basis of their findings, for example, Airwars wrote: “Central to the disparity in accounts was an apparent American determination that because they had identified one mosque, the building across the street – which was in fact a larger, newer mosque – couldn’t be one as well.”

What’s more, Pentagon spokesperson Navy Capt. Jeff Davis, the director of defense press operations, also stated on March 17, “We do not currently assess there were any civilian casualties.” That claim is now facing challenges due to Forensic Architecture’s video footage which includes White Helmets pulling children’s bodies out of the rubble.  Other video footage, including one taken long before the strike and one soon afterwards, shows a large sign by the door which reads: “Umar Ibn Al-Khattab Mosque.” It is difficult to understand if U.S. intelligence relied on any eyes on the ground why that sign would not have been detected, or why aerial surveillance would not have detected the figures of children and elderly entering the building on March 16. According to the Pentagon, “extensive surveillance took place before the strike.” Perhaps the answer is, in part, that the building was at least understood by the U.S. military as a religious center, but one that lost its protected status when being used by enemy forces. “Intelligence indicated that al Qaida leaders used the partially-constructed community meeting hall as a gathering place, and as a place to educate and indoctrinate al Qaida fighters,” Pentagon spokesperson Eric Pahon told Airwars following the strike.

The Department of Defense also stated initially that “dozens of core al-Qaida leaders were killed” in the strike. But if one subtracts the number of bodies for which the three organizations can identify names, ages, and the like (at least 28 people), there would not be dozens of fighters left to be counted among the casualties. In other words, there is a great discrepancy between the two perspectives, which might be based on a different assessment of the facts or perhaps different assessments of the legal definitions of “civilians” and members of al-Qaida.

Somebody’s assessment of the incident is wrong, and the Pentagon has, in significant part, ceded the public understanding of what happened to others.

Now enter the law as to any mistakes that might have been made in authorizing the strike. In its report, Human Rights Watch raises the specter of war crimes on the part of U.S. authorities. In the full report they state:

“The US authorities’ failure to understand the most fundamental aspects of the target and pattern of life around the target raises the question whether officers were criminally reckless in authorizing the attack.”

The report is correct in its reflection of the law: Recklessness is the proper standard for ascertaining war crimes, as I have written before and as the British government, for example, recently acknowledged in litigation. Recklessness, as a legal term of art, generally involves an actor consciously disregarding a grave risk, in this case a risk of mistakenly targeting a civilian object and killing civilians. Ordinary negligence, a lower standard that does not incur war crimes liability, generally involves a culpable failure to perceive such a grave risk. Put another way, you are reckless if you are aware of a grave risk and choose to take it; you are negligent if you are unaware of a grave risk due to insufficient caution.

But the HRW report itself does not present significant, if any, evidence of such criminally reckless behavior. In other words, Human Rights Watch does not establish that military officers were aware of a high risk that the building was a mosque. Rather the evidence would, at best, point to the military officers being unaware. Indeed, other organizations suggest that this lack of awareness was the U.S. military’s central mistake in carrying out the attack.

I understand that groups like Human Rights Watch and the rest of us cannot take the U.S. military on pure faith that recklessness was not involved in the operation. Also, strictly speaking, the HRW report is only “rais[ing] the question” whether criminal recklessness was involved and calling for that question to be answered as part of an investigation. Still, the invocation of war crimes—especially without a pattern of such episodes giving rise to any such inference—is at a minimum provocative.

That said, the title for HRW’s News Release—“Syria: US Mosque Attack Likely Unlawful”—is better grounded in the law. The mistakes reported by HRW, if true, could amount to negligent behavior and a failure on the part of military officers to take feasible precautions to minimize civilian casualties. Those actions could, indeed, constitute “unlawful” behavior—violations of the laws of war for which the United States would be legally responsible—but not criminal wrongdoing under international law.

That line drawing would be similar to the Pentagon’s investigation of the U.S. strike on the Doctors Without Borders’ hospital in Kunduz, Afghanistan. That investigation concluded that military officers violated the laws of war by failing to take feasible precautions to properly identify the target. Their actions, however, did not give rise to war crimes liability. Why not war crimes? Well, for one, the military officers were unaware that they were striking a hospital, according to the Pentagon report. Plus violation of the legal obligation to take “feasible precautions” before launching a strike would not itself be a war crime. (Disclaimer: I served as Special Counsel to the General Counsel of the Department of Defense when the Pentagon released the Kunduz report.)

So, what has the U.S. military said in response to reports that the building struck by U.S. forces on the night of March 16 was a mosque and resulted in significant civilian casualties? According to one news outlet (The Hill), but not reported widely elsewhere, after the Pentagon first insisted that the building was not a mosque, “officials later said it could have been part of a larger ‘mosque complex.’” That kind of admission should not be left to anonymous officials in one stray news report.

The Defense Department has also recently spoken on the record. After reviewing the draft Human Rights Watch report, the Office of the Staff Judge Advocate at U.S. Central Command sent a letter to the organization dated April 14, 2017, stating that in contrast to the NGO’s report “the U.S. investigation reached a different conclusion.” What conclusion is that? The CENTCOM letter states only: a “comprehensive investigation reached the preliminary conclusion that the strike was lawful” (emphasis added). But what does that tell us? It says nothing with respect to whether the Defense Department now believes, as a preliminary matter or otherwise, if the building was a mosque or part of the mosque complex, if any civilians were killed, and if the targeted AQ fighters were indeed killed in the strike. Saying “the strike was lawful” fails to address all those issues and may raise more questions than it answers.

Consider this possibility: A U.S. investigation might have reached the conclusion that the strike was lawful if it found that U.S. personnel took feasible precautions to ensure the target was a proper one, but made an honest and reasonable mistake under the circumstances prevailing at the time. Indeed, as the three independent groups report, for example, the building did not have a minaret or a dome. What’s more, the military officers may have even anticipated some amount of civilian casualties before conducting the operation, but within the parameters set by the principle of proportionality under the laws of war. In other words, the Department of Defense could now believe that it struck a mosque or religious site that was being misused by the enemy causing an unanticipated heavy civilian toll—and that unintentional outcome could have resulted from a series of lawful decisions.

So, where are we left? Largely in the dark except for the light shined on this incident most brightly by the highly researched reports of the three nongovernmental organizations. The issue here is not simply one of legality. The more critical question is: did the United States attack a mosque resulting in significant civilian casualties? If so, were there senior-level AQ fighters killed as well, and what would be the explanation for any military and intelligence officials having gotten this so wrong? It is important for Secretary Mattis to wrestle these questions to the ground expeditiously and, as Secretary Ash Carter did with the Kunduz strike, own up to the mistake if that’s what occurred here. It is equally important for Secretary Mattis to wrestle these questions to the ground, and publicly explain if the answer reached is that the three groups’ factual conclusions are fundamentally mistaken.

Image: Department of Defense
Video: Forensic Architecture