[Editor’s note: Ryan Goodman responds to Gabor Rona in a follow-on piece.]

Ryan Goodman makes a compelling case that the United States undercounts its civilian casualties. He focuses primarily on the prohibition against attacks that disproportionately injure or kill civilians and on the failure of the U.S. to responsibly account for injury or death to those it would concede are civilians. But what about those who the U.S. wrongly labels as combatants in both undisputed wartime situations and in circumstances where the laws of war don’t even apply?  Given the scope of U.S. misapplication of the laws of war, it is possible that many more U.S.-caused civilian casualties fall into these categories rather than into those Goodman addresses.

Just Security also recently published an excellent and detailed list of questions that Congress should be asking about U.S.-caused civilian casualties. It, too, focuses primarily on the same category as Goodman: those people who the U.S. would concede are civilians if it were aware of them. But a full rendering of civilian casualties has to take in three broad principles of international law in order to also cover death and injury of those wrongly categorized as combatants:

1. The distinction between what is and is not war

In the absence of war, human rights law prohibits extrajudicial killing except in self-defense or when necessary to prevent an imminent threat to human life. But the U.S. rejects the application of human rights law to its targeting operations and wrongly uses more permissive law-of-war rules for killing outside of war contexts – in places like Somalia and Pakistan — because it continues to live by a flawed “global war on terror” concept in which “everything is war.”

A look at the discrepancy between where the U.S. claims to be “at war” and where it actually has military operations, including lethal ones, drives home the point. In its March 18 report to Congress on “the legal and policy frameworks guiding the United States’ use of military force and related national security operations,” (also known as the ‘war powers report’), the Trump administration lists seven countries in which the U.S. “has used or is using military force”: Afghanistan, Iraq, Syria, Yemen, Somalia, Libya and Niger. By contrast, the chief of U.S. Special Operations Command, Gen. Raymond Thomas,  said this last year: “On a daily basis, we sustain a deployed or forward stationed force of approximately 8,000 across 80-plus countries. They are conducting the entire range of [special operations forces] missions in both combat and non-combat situations.” A spokesman for Special Operations Command, Ken McGraw, was even more specific, stating that halfway through 2017, U.S. special operations forces had already been deployed to 137 countries.

What U.S. forces are doing in many of these countries militarily, and under what terms of engagement, is not known, and often doesn’t come to light until something goes wrong, as it did in Niger last year. However, there’s  reason to believe that the U.S. applies less restrictive law-of-war rules for killing, rather than more restrictive human rights law-based rules, in all its military operations, regardless of whether or not the context is, in fact, war.

Evidence of the overly broad application of wartime killing rules can be seen in the flawed, Obama-era guidelines on drone strikes, known as the Presidential Policy Guidance (PPG). The PPG forbade targeted killings outside “areas of active hostilities” unless the risk of civilian casualties was near zero and unless there was “near certainty” that the intended target was present. Implicit in the PPG was the notion that targeted killings were perfectly permissible outside “areas of active hostilities,” so long as there was no known risk of civilian casualties. But outside “areas of active hostilities” implies, and significantly overlaps, with areas outside the context of war, where the laws of war do not apply. Where the laws of war do not apply, the distinction between civilian and combatant does not apply because there are no combatants outside of war, only civilians. The Trump administration has reportedly relaxed some of these already loose Obama-era rules, considering them too restrictive.

A second reason I believe the U.S. uses the more permissive rules of wartime for all its killing operations, including those outside of war, is because its officials say so. In conversations with high-level Pentagon and State Department officials over the past several years, I was consistently told that U.S. forces apply and comply with law-of-war rules in all targeted killing operations. In all of these interactions, I responded with a question: “Even where the context is not war?” The consistent reply was a repetitive non-answer: that all military operations comply with applicable laws of war and rules of engagement. Follow-up questions about whether rules of engagement appreciate the distinction between war and its absence went unanswered. Likewise, and speaking publicly, former State Department Legal Advisor Brian Egan has said: “…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.” This is false. Instead, the application of law of armed conflict rules for targeting/“military action” that occurs outside the context of armed conflict is, simply, impermissible.

2. The distinction between combatant and civilian in war

International law applicable to war permits targeting “enemy combatants” but not civilians. By using overly broad notions of who is targetable, the U.S. deliberately and unlawfully kills people who are, in fact, civilians. This much is apparent from how the U.S. deliberately misinterprets the applicable law.

First and foremost, the U.S. takes the misguided position that even in advance of an attack, there is no presumption of civilian status in cases of doubt. The U.S. position is in contrast with that of the 174 States party to First Additional Protocol to the Geneva Conventions, which requires that in case of doubt, persons are presumed to be civilians rather than combatants. This rule applies explicitly to wars between states, but the authoritative study on customary international humanitarian law (the law of armed conflict) published by the International Committee of the Red Cross, suggests that it should apply equally to wars against non-state armed groups. In any case, because of the prohibition to deliberately target civilians, parties to armed conflict must take feasible measures to verify that a person is not a civilian before targeting that person. There’s more on this issue in Adil Haque’s excellent analysis, here.

Flowing logically from its rejection of any presumption of civilian status in case of doubt, the U.S. has pursued killing practices such as signature strikes (targeting persons because their behavior approximates that of terrorists, although their identity is unknown), “membership”-based targeting (regardless of whether there exists evidence that the individual is actually a fighter or directly participates in hostilities on behalf of the group in which he or she is suspected of being a member), and ‘material support’-based targeting (for example, of those suspected of providing financial support for terrorist activities). Targeting on the basis of these rationales, within the context of war, carries a heavy risk of constituting war crimes where the target is a civilian who is not directly participating in hostilities. In what are known as “double tap” strikes, there have even been targeted killings of those who come to collect the dead and to aid those wounded by U.S. attacks. A chilling video of such an attack can be seen here.

3. Disproportionate attacks

This is the area Goodman addressed in his analysis. In war, international law prohibits attacks that, even though directed at legitimate military objectives, are likely to cause unintended “collateral damage” that is disproportionate to the military advantage to be gained.

In this third category are those who are inadvertently killed and who the U.S. would concede to be civilians, if it took the trouble to find or acknowledge them. As Goodman notes, the U.S. failure to acknowledge the full spectrum of civilian casualties it causes is partly the result of an extremely high standard of evidence it requires to consider that a casualty is a civilian. This is no doubt tied to the U.S. desire to remain consistent with its rejection of any presumption of civilian status in the event of doubt, as discussed above. But the likely cause of an even greater number of civilian casualties is the wrongful and deliberate killings occasioned by overly broad notions of what constitutes war, and within war, who is a combatant.

Bottom line

Acknowledging and rejecting all the flawed bases of U.S. targeting policy is important not merely in order to bring the U.S. into compliance with its legal obligations or to save innocent lives. It is also important for preventing the spread of terrorism and the dangerous conceit increasingly adopted by repressive states that they, too, can target their enemies with deadly force, once they label them terrorists.

[Editor’s note: Now read Ryan Goodman’s brief response to Gabor Rona.]

Image: Air Force photo by Justin Connaher