Does the U.S. “Deliberately Misinterpret” the Laws of War?–A Response to Gabor Rona

I recently wrote about problems in the Pentagon’s procedures for post-strike civilian casualty assessments in places like Iraq and Syria. Gabor Rona’s letter-to-the-editor, although it is framed as a response to me, basically accepts my analysis and points to other areas in which Rona believes the United States falls short in either avoiding or accounting for civilian casualties. Since it is presented as a response to me, I thought to highlight a few items.

First, Rona faults the Obama-era approach which relied on the law of armed conflict outside areas of active hostilities. He writes, “outside ‘areas of active hostilities’ implies, and significantly overlaps, with areas outside the context of war, where the laws of war do not apply.” This assertion repeats the first line in a debate that has gone much further and deeper. I wrote extensively about problems with that assertion a few months ago in a piece titled, “Why the Laws of War Apply to Drone Strikes Outside ‘Areas of Active Hostilities’ (A Memo to the Human Rights Community).” Rona and others responded to my essay with additional layers of analysis. I recommend readers engage those discussions (especially Marko Milanovic’s analysis and comments to his post at the blogsite, EJIL Talk) to see whether Rona’s assertion holds up.

Second, Rona recounts having the same conversation over many years with Pentagon and State Department officials in which, according to his account, they appear dumbfounded and unable to answer his question of why the United States applies law-of-war rules to lethal operations “where the context is not war.” That narrative is surprising. I imagine the officials could easily respond that the context is one of armed conflict (or “war” if you’d like to use the non-technical term). In short, they simply wouldn’t accept the premise of Rona’s question. This is a well-trodden difference of opinion between Rona’s view and the official U.S. position over nearly seventeen years.

Finally, Rona writes that “the U.S. deliberately misinterprets the applicable law.” That’s a strong accusation. Even if Rona were correct, leveling such a charge requires strong evidence to support it. Rona’s analysis, however, goes to show only that the United States interpretation of the law is wrong. I happen to agree with him, for example, that the Department of Defense’s rejection of the presumption of civilian status is legally incorrect. But the Department’s position has a long lineage resting on an analysis by the Joint Chiefs of Staff in the early-to-mid 1980s when the JCS reviewed whether the United States should ratify Additional Protocol I of the Geneva Conventions. In that internal review (since declassified), the Joint Chiefs suggested that the rule involved the codification of a novel obligation during the treaty negotiations and not one the United States would accept as custom. Saying that the United States has “deliberately misinterpreted” the law must not only prove such a charge, but grapple with these kinds of facts in the historical record. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.