A Critique of Defense Dept General Counsel Ney’s Remarks on the Law of War

On Tuesday, Paul Ney, Jr., General Counsel to the U.S. Department of Defense (DoD), delivered an important speech on the law of war at a conference convened by the Israeli Defense Forces. Much of what Ney said was, in my view, mistaken. In this essay, I’ll limit myself to two themes: accountability for civilian deaths and the conduct of urban warfare.

Evidence of Illegality

Ney denies that “reports of civilian casualties constitute evidence of violations of the law of war by U.S. or Coalition forces” on the now familiar grounds that the results of an attack may not reflect what attacking forces intended, knew, or expected, or what precautions they took or feasibly could have taken. Since DoD typically denies “NGOs, rapporteurs, or other observers” that very information, Ney’s complaint will likely ring hollow in many ears.

In any event, if U.S forces bomb a home and kill the family inside, the results of the attack may be probative evidence (Ney’s word) of an unlawful failure to take feasible precautions in attack. Of course, the results are not conclusive evidence, which only DoD could provide. Nevertheless, the results call for an explanation. There may be an exculpatory explanation—from bad intelligence to mechanical failure—but it is for the party that controls the relevant information to offer it.

Ney opines that public scrutiny of U.S. military operations reflects “a failure to distinguish between lawful and unlawful combatants.” According to Ney, when unlawful combatants kill civilians, it is reasonable to conclude that they violated the law of war.

On the other hand, when civilian casualties result from the operations of lawful combatants, like the U.S. military or the Coalition to defeat ISIL, the same inference [that the civilian casualties are evidence of a violation of the law of war] is not reasonable. We have robust programs and processes to implement the law of war and to minimize civilian casualties.  Our commanders face the press and explain our operations to the extent we can and make clear our intention to target only military objectives.  Our public affairs officers respond to press or NGO questions and frequently post on public websites information about the strikes that we have conducted and civilian casualties that we have caused.

There are many problems with this passage. Let’s get the minor ones out of the way. First, members of the U.S. military and the Coalition to defeat ISIL are not lawful combatants. The legal rules that constitute lawful combatancy—prisoner of war protection and combatant immunity—simply do not apply to non-international armed conflicts between State armed forces and organized armed groups, or between such groups. Second, if we are “lawful combatants,” then so are Syrian and Russian soldiers. In international armed conflict, members of state armed forces remain lawful combatants even if their armed forces systematically violate the law of war. Finally, if ISIL members are “unlawful combatants,” then so are SDF members, whom we support, claiming that the obey the law of war. These misplaced labels tell us little, if anything, about what inferences we might reasonably draw from the results of military action.

Labels aside, is it true that DoD’s “robust programs and processes to implement the law of war” make it unreasonable to infer that the civilian casualties are (probative, not conclusive) evidence of a violation of the law of war? No. There is a systemic problem with U.S. compliance with the law of war. If Ney can’t see it, then perhaps he is standing too close.

Ney equates DoD’s interpretation of the law of war with the law of war itself. By implementing the former, he assumes that DoD implements the latter. Ney concludes that we should not draw adverse inferences when civilians are killed. Given DoD’s robust programs and processes, we should presume that there is an innocent explanation.

This line of thinking starts with a false premise. Perhaps we should presume that U.S. forces obey the law of war as DoD understands it. But we cannot presume that U.S. forces obey the law of war, since DoD misunderstands it. Programs and processes that robustly implement the DoD’s mistaken views cannot guarantee the lawful conduct of military operations. Garbage in, garbage out, as they say.

As Just Security readers know, the DoD’s interpretation of the law of war is, in critical respects, mistaken (see here and here). DoD claims that civilians lose their legal protection from attack and collateral harm if they “effectively and substantially contribute to an adversary’s ability to conduct or sustain combat operations,” an exceedingly broad and vague standard with no legal basis. DoD claims that members of armed groups are liable to attack and collateral harm even if they never take direct part in hostilities. DoD does not appear to accept the customary obligation to do everything feasible to verify that its targets are not civilian but military, and it explicitly rejects the customary obligation to consider persons and objects civilian in cases of doubt. These mistaken views compound each other, increasing the risk of misidentifying civilians and then targeting them, forgoing feasible precautions to avoid harming them, or disregarding them when assessing proportionality.

Simply put, when U.S. operations kill civilians, it may be reasonable to infer that the U.S. simply did not consider them civilians in the first place. In particular, when journalists or NGOs identify hundreds of civilian casualties, and the U.S. denies all but a small fraction, one reasonable explanation may be that the U.S. misclassified them. Ney assumes that violations only occur when the law is understood and wantonly disregarded. But violations also occur when the law is misunderstood. In such cases, combatants may act in the utmost good faith, but the civilians they kill are just as dead.

Destroying the Village to Save It

Ney devotes a fair amount of attention to “an effort by the ICRC and a few States to ban or restrict the use of explosive weapons in populated areas.” According to Ney, “Their reasoning seems logical and simple: ‘Explosive weapons are causing harm to civilians, and there would be less harm to civilians if the military used fewer explosive weapons.’” That’s an oversimplification, if not a caricature. In fact, the ICRC’s view is that “explosive weapons with a wide impact area should not be used in densely populated areas due to the significant likelihood of indiscriminate effects.” The qualifications (wide impact, dense population) are important, and it’s not clear why Ney omits them. It’s also not entirely clear why Ney ignores the ICRC’s rationale, though I have some suspicions.

DoD takes the view that only inherently indiscriminate weapons, specifically designed to attack the civilian population or that would necessarily cause excessive civilian harm, are unlawful. This view defines the rule so narrowly that almost nothing falls under it. Highly inaccurate weapons, more likely to hit civilians than to hit lawful targets in dense populations, are permitted on this view. So are weapons with a large blast or fragmentation radius that often or typically cause excessive civilian harm in dense populations. In contrast, the ICRC maintains that the law of war may disfavor (though not prohibit) a weapon by its use (rather than its nature) and its likely effects (rather than its necessary effects).

In any event, I’m more interested—and more troubled—by Ney’s own rationale. Ney says that not using explosive weapons in densely populated areas “is quite likely to reduce the protection afforded civilians in armed conflict.” One argument is familiar: “promulgating a new norm against using explosive weapons in populated areas risks further encouraging ISIS and other terrorist groups to hide in urban areas and use civilians as human shields.” Repetition has not made this line of argument any more persuasive. For armed groups like ISIS, the political, strategic, and tactical benefits of controlling and operating in urban areas will outweigh the costs whether or not U.S. forces use wide-impact explosive weapons there. The notion that, if we use such weapons in cities, then ISIS will suddenly meet us in the open desert, in regular troop formations, is implausible in theory and belied by experience.

But Ney’s primary argument is new or, rather, so old as to be new again. Ney says that “blunting military effectiveness can have the effect of prolonging the war and increasing the suffering of the civilian population.” Conversely, “[w]inning as quickly as possible can support humanitarian considerations” by reducing the total number of civilians injured or killed (by both sides, it seems). He cites the 1863 Lieber Code for the proposition that “[t]he more vigorously wars are pursued, the better it is for humanity.”

These remarks cast a dark shadow on Ney’s earlier comment that “the law of war reflects a convergence of military and humanitarian interests.” Usually, when people say that sort of thing, they mean that restrained warfare establishes moral legitimacy and encourages cooperation, while unrestrained warfare alienates allies and creates enemies. Ney means something quite different, namely that “defeat[ing] the enemy as quickly and efficiently as possible” is both justified by the principle of military necessity and permitted (perhaps required) by the principle of humanity. This view recasts military effectiveness as humanitarianism, self-interest as altruism, and killing civilians as saving them.

Do the ordinary rules governing precautions and proportionality permit attacking forces to kill more civilians now to reduce the total number of civilians killed later? It’s an important question, that Ney doesn’t directly address. Rather than argue with myself, I’ll make two independent points.

First, the ICRC’s main point is that even combatants who try to use wide-impact explosives in dense populations within existing legal limits are likely to fail, often with catastrophic effects for civilians. To accept the ICRC’s view, or even engage with it, Ney would have to admit our own fallibility and susceptibility to motivated reasoning. Winning quickly is always good for us, so we naturally want to believe that fighting without restraint will be good (overall) for civilians (not the ones we kill, of course). And, if we’re wrong, the costs of error fall on the civilians, not on ourselves.

Second, Ney’s Lieberian vision may inform DoD’s interpretation of existing legal rules, which categorically restrain warfare and do not admit of balancing costs and benefits. As we have seen, DoD takes a very permissive view of (i) what makes human beings liable to attack and collateral harm and (ii) how much evidence attackers need to target a person or disregard the risk of harming them. No doubt, by narrowly interpreting these rules, DoD thinks it is helping itself to win more quickly. There is some evidence that DoD is also trying to convince itself that, by narrowly interpreting these rules, it is also helping civilians. Just not the ones we kill.

I’ll close with a reminder that the law of war applies equally to U.S. forces and to ISIS, to Syria and to Russia. We should keep that in mind when we hear Ney recite Lieber’s dictum, “The more vigorously wars are pursued, the better it is for humanity.” We’re not the only ones trying to win quickly and call it mercy. Ney says that “the law of war is not meant to blunt the sword, but to sharpen it.” We’re not the only ones with swords.

  

About the Author(s)

Adil Ahmad Haque

Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School, Author of Law and Morality at War. Member of the editorial board of Just Security. Follow him on Twitter (@AdHaque110).